Toriyama v. Putnam

SPENCE, J.

Plaintiffs sued to recover damages resulting from the death of Heizo Toriyama, deceased. The jury returned a verdict in favor of defendants and from the judgment entered thereon, plaintiffs appeal.

At about 5 P. M. on the evening of November 18, 1931, the deceased, in company with another Japanese, was driving his automobile in a northerly direction on the -road to Martinez just north of the town of Walnut Creek. Defendant George A. Putnam, hereinafter referred to either as defendant or respondent, was driving the automobile of defendant G. Blalock Putnam in the same direction and had followed the deceased through the town. Both cars were being operated at a moderate speed of between 25 and 30

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miles per hour. At the point where the accident occurred the road had an asphalt surface about 22 feet in width with ragged edges or “chuck holes”. On either side of the asphalt there was a shoulder of hard dirt and gravel, the shoulder on the easterly side of the road being quite wide. An engineer called by plaintiffs, testifying with respect to this shoulder, said, “It can be a roadway.” There was a line of poles near the edge of this shoulder. The accident occurred when the car of the deceased ran off the asphalt and struck one of the poles on the easterly shoulder of the highway. Plaintiff appears to have proceeded to trial upon the theory that defendant, in attempting to pass the car of the deceased, had cut in too quickly and had come in contact with the car of the deceased forcing it off the asphalt road. The Japanese passenger in the car of the deceased testified that he felt “contact with the wheel” but the uncontradicted testimony showed that there was no indication on either car of any contact between them. This witness had previously written to the widow of the deceased saying that he did not know anything about the details of the accident and it appeared on his cross-examination that he had an action pending seeking to recover damages arising out of the same accident. No other witness testified to any contact between the ears. The defendant testified that there was no such contact and that he was six feet away from the ear of the deceased as he passed it. ITe further testified that there were some bamboo plants on the left running-board of the car of the deceased, which plants were in sacks; that the sacks had become loose and that the plants, which were eight or nine feet tall, were projecting over the running-board and were dragging on the ground; that as he drove up beside the car of the deceased he sounded his horn and called the attention of the deceased to the dragging plants by pointing to them; that the deceased looked down at the plants; that defendant then increased his speed but did not pull over to the right side of the road until he was 75 feet beyond the pole which was struck by the deceased; that he saw nothing of what occurred after passing the deceased’s car until he heard the crash and stopped. There was evidence relating to another ear approaching from the opposite direction but the evidence as to the speed and the position of this car was highly conflicting. The evi