Judd v. Webster

KERRIGAN, J.

This is an appeal by plaintiff from a judgment in favor of the defendant in an action for damages for personal injuries received by plaintiff in a collision with an automobile owned and driven by the defendant.

The questions to be determined relate to the refusal of the trial court to give certain requested instructions to the jury.

A brief outline of the facts of the case will be of advantage in arriving at that determination. The collision occurred on July 30, 1918, at the intersection of two public highways in the county of Monterey, namely, the San Juan road and the Castroville road, the former running east and west and the latter north and south. The plaintiff was mounted on a bicycle and was proceeding along the Castro-ville road in a northerly direction, pursuing his course on the easterly or right-hand side thereof. He reached the San Juan road and crossed to its northerly side, turning his bicycle gradually to the west. At the same time the defendant, driving an automobile along the San Juan road, approached from the west the intersection of the two highways. The automobile and bicycle came into collision at some point in said intersection north of the medial line of San Juan road and near the medial line of its intersecting thoroughfare.

The complaint alleged that the defendant was driving his automobile at a high rate of speed and on the wrong side of the road; that he did not yield the right of way

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to plaintiff; that he failed to look for or to see traffic approaching from his right, and that by reason of his inexperience as a driver and of a physical infirmity he was unskilled in the operation of his ear, which matters the plaintiff alleges to be the proximate cause of the collision in question. The defendant denied these allegations, and in his turn charged the plaintiff with contributory negligence in that he proceeded to cross the San Juan road without first ascertaining the condition of traffic thereon and without looking where he was going, and from the time he started to cross said road until a moment before the collision the plaintiff was looking to his right.

Our examination of the record discloses that there was no evidence that at the moment of or just before the collision the defendant was traveling at an unlawful rate of speed or, in fact, faster than about ten or fifteen miles an hour; nor is there any satisfactory evidence that he was traveling on the wrong side of the road. It is admitted, however, that the impact occurred on the northerly side of the San Juan road; but defendant’s claim in this regard is that he turned to that part of the road from its southerly side, upon which he was traveling, in an attempt to avoid the collision. As to the alleged unskillfulness of the defendant in the operation of his car, it appears that he had been driving an automobile for about four months, covering in that period about three thousand miles. It also appeared that while he was lame and could not use his right leg for the manipulation of the foot-brake of his car, he had had a lever attached to said brake, by means of which he experienced no difficulty" in its prompt and effectual use.