Maxwell v. Western Auto Stage Co.

JAMES, J.

This appeal was taken from a judgment awarding damages to the plaintiff. It was alleged in the complaint that a collision which occurred between an automobile driven by the plaintiff and one driven by appellant Dukelow, was the result of the negligent acts of Dukelow, who was employed as a driver by his codefendant. In their answer defendants denied the charge of negligence, and affirmatively alleged particular acts of negligence on the part of the plaintiff as contributing proximately to cause the alleged damage. The trial court found the facts in accordance with the allegation of the complaint, but failed to make any finding upon the issue tendered by the defendants as to the contributory negligence of the plaintiff. Several grounds are urged for a reversal, chief • among which are:

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(1) That the evidence does not sustain the findings of the court as to the negligence of the defendants; (2) that the court erred in admitting testimony of statements made by defendant Dukelow immediately after the accident; (3) that the court erred in not making an affirmative finding upon the issue as to the contributory negligence of the plaintiff.

Immediately before the accident occurred, defendant Duke-low, driving an automobile in service as a stage, was traveling northward along a straight road in a suburban community. He approached a point where the road upon which he was traveling was entered by another highway from the right. This latter highway gave entrance to and from the road upon which Dukelow was driving the stage, but did not cross it. Plaintiff, operating an automobile, was traveling down this connecting highway and was approaching the point where Dukelow’s vehicle would pass the point of connection between the two roads. Dukelow turned his machine toward the left-hand side of the road upon which he was traveling, with the purpose of avoiding contact with the plaintiff’s automobile, but the latter vehicle struck the stage, with the result that the stage was completely turned over and the automobile of the plaintiff was damaged. The testimony of plaintiff was, in substance, that as he reached the point where the road upon which he was traveling entered the main highway, he looked to the left first and saw the vehicle of defendants approaching at a distance of about 150 or 160 feet; that, intending to turn to the left and down the main, highway, he proceeded across the middle thereof for the purpose of making the tarn, and that the defendants’ automobile having reached that point, swerved to the left and the collision resulted. He testified that he was traveling at a moderate rate of speed. On the other hand, Duke-low testified that just previous to reaching the point of the accident he had been traveling at a speed of twenty-five to thirty miles an hour, and that as he approached the corner where the two roads met he began to slow down, and that when he was about twenty feet from the nearest curb on the second highway he saw the plaintiff’s automobile; that considering that there was ample room for him to pass, he bore to the left-hand side of the roadway in order to allow the plaintiff sufficient space; that the plaintiff appeared to slow down at first, but that his machine suddenly shot for