Couchman v. Snelling

TYLER, J.

Action for damages for personal injuries sustained by plaintiff in a collision between two automobiles.

The accident occurred on September 15, 1929, between 11 and 12 o’clock in the morning, at the intersection of Genoa and Aileen Streets in the city of Oakland. Genoa Street runs approximately north and south and Aileen Street approximately east and west, crossing each other at right angles. Plaintiff was driving west on Aileen Street and defendant was driving south on Genoa Street. The northeast corner of the intersection was occupied by an apartment house, and the view of plaintiff and defendant as to each other was admittedly obstructed within the meaning of section 113 of the California Vehicle Act. The complaint charged the defendant with the usual general allegation of negligence. The answer denied the alleged negligence and further pleaded contributory negligence on the part of plaintiff. The cause was tried by the court with the aid of a jury. A verdict was returned in plaintiff’s favor in the sum of $5,000 and judgment was rendered accordingly. Motion for a new trial was made and denied.

This is an appeal from the judgment and order. Appellant urges several contentions for a reversal. ITe claims that plaintiff was guilty of contributory negligence as a matter of law; that the trial court erred in the admission of evidence and committed prejudicial error by making certain remarks in the presence of the jury; that counsel for plaintiff was likewise guilty of prejudicial error by repeatedly attempting to place before the jury the fact that defendant was driving without an operator’s license. It appeared in

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evidence that plaintiff at the time of the accident was traveling at a speed estimated at fifteen miles an hour. According to his testimony, when he was about twenty feet distant from the intersection of the streets, he observed defendant’s car approaching said intersection some seventy-five feet away proceeding at a speed of twenty-five miles an hour. Believing he had time to pass the intersection without danger of a collision, he proceeded across the same without again directly looking at defendant’s automobile except that he kept it in his side vision; that beyond this he did nothing to avoid a collision. When approximately three-quarters of the way across the intersection, his car was struck on the right rear wheel and overturned by defendant’s automobile. Other evidence was to the effect that defendant had applied her brakes and there was testimony to show that she had stated that she had on high-heeled shoes and would never wear them again because she knew her foot had slipped off the brake. Further recital of the evidence is unnecessary, as we are of the opinion that it sufficiently appears from what we have said that' plaintiff was not guilty of contributory negligence as a matter of law, but the question was one of fact to be determined by the jury.