Johnson v. Wehner

KNIGHT, J.

As the result of a collision between plaintiff's automobile and defendant's truck, which was being driven by one Louis Lunford, plaintiff suffered a compound

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comminuted fracture of the left lower leg, and this action was commenced to recover damages therefor, plaintiff alleging that the proximate cause of the accident was the negligent operation of said truck. Defendant denied the allegations of negligence and charged plaintiff with contributory-negligence. The action was tried without a jury, and the trial court found in plaintiff’s favor on both contested issues, and thereupon entered judgment accordingly against defendant for the sum of $4,633, from which judgment defendant appeals.

Defendant makes no contention that the evidence is insufficient to sustain the finding as to the negligent operation of the truck, but as grounds for reversal urges that the negative finding upon the issue of contributory negligence is unsupported by and contrary to the evidence.

The accident happened at thp intersection of Willow and Orchard Streets in the City of San Jose shortly after 10 o’clock in the morning. Plaintiff was driving easterly along Willow Street and the truck was being driven northerly along Orchard Street. Plaintiff testified that when his machine passed the westerly line of Orchard Street and he “was approximately in the middle of the street” he observed the truck, which was then about 15 or 20 feet from the corner, traveling between 22 and 25 miles an hour, and that the driver thereof was not observing the traffic on the highway, but seemed to be looking down at his steering-wheel. Seeing that if he continued to travel at the rate of speed he was then maintaining the truck would strike him “squarely in the middle,” plaintiff immediately applied his brakes, but after doing so, saw that the truck driver was coming ahead without diminishing his speed or diverting his course, and, consequently, in order to avoid being struck, plaintiff first attempted to “parallel” the truck, but instantly realized that by such maneuver the force of the truck would overturn him, so he diverted his course slightly to the south in an effort to pass behind the truck, with the result that the right front wheel of his automobile collided with the left rear wheel of the truck, practically demolishing, the front end of his machine and inflicting upon him the injury above mentioned.