Giovannoni v. Union Ice Co.

MR. JUSTICE THOMPSON Delivered the Opinion of the Court.

This is an appeal from a judgment rendered upon a verdict for damages for the death of Antonio Lanaro, which occurred as a result of a collision between an ice truck and a motorcycle.

The highway which traversed Alta Heights in east Napa was undergoing repairs. Spring Street, which intersected the highway in that vicinity and extended at a right angle practically east and west, was then used as a detour. In the block adjoining the highway Spring Street ascended to that thoroughfare at approximately a six per cent grade. Spring Street was sixty feet in width between adjoining property lines. Down the center of this street a fifteen-foot strip was covered with loose gravel as a base for road purposes for the use of vehicles. The traveled portion of this graveled strip had been worn to a hard, smooth surface for a space of about eight or nine feet in width. A strip of loose gravel some three feet- in width had accumulated along either side of the traveled way. The balance of the street, consisting of dirt, was fairly smooth and passable, but was ordinarily unused along the borders thereof.

On the afternoon of September 9, 1927, Antonio Lanaro, who was the chief means of support of his elderly father, Battista Lanaro, who died subsequent to the trial of this case, was conveying his sister, Gustina, to the home of their married sister, Mrs. Pighini, who lived about the middle of the block on the southerly side of Spring Street. The motorcycle stopped at the southerly edge of the graveled roadway in front of the house. The front wheel rested upon the loose gravel at the edge of the traveled way. The rear wheel rested upon the dirt beyond the gravel. The machine was standing in an upright position at about a

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forty-five degree angle to the roadway and headed upgrade in the direction from which Antonio had come. There were no trees or obstacles to prevent an unobstructed view of the entire street in this block. When the motorcycle was brought to a stop in this position Gustina dismounted and walked to the gate in front of their sister’s house. This gate was some twelve or fifteen feet distant from where the motorcycle was stationed. Antonio stood by the side of his machine with one leg thrown over the saddle to support it. The evidence does not affirmatively disclose the fact, but it seems apparent that his motor was permitted to run while he stood there. Upon reaching the gate, the sister said, “The gate is locked.” Antonio said, “I will come up and unlock it.” Gustina replied, “Never mind I will go around to the other one.” This she proceeded to do. The conversation lasted only a moment or two. Apparently Antonio then mounted his motorcycle and attempted to return, starting up the grade on the southerly side of the graveled portion of Spring Street. A collision occurred immediately between the motorcycle and the defendant’s ice truck which was then coming down Spring Street, resulting in the death of Antonio the following day. Gustina did not see the actual collision and her testimony furnishes little evidence of value concerning the cause of the accident.