Inouye v. Gilboy Co.

[27]

SPENCE, J.

This action arose out of a collision between plaintiff’s automobile and defendant’s truck. By his complaint plaintiff sought to recover for damage to his automobile and by its cross-complaint defendant sought to recover damages to its truck. Upon a trial by the court sitting without a jury, judgment was entered in favor of plaintiff and against defendant on both the complaint and cross-complaint and from this judgment defendant appeals.

On this appeal it is contended that there was no negligence on the part of appellant and that even if appellant was negligent the respondent was guilty of contributory negligence as a matter of law. Under the evidence these questions were, in our opinion, questions for the trial court and the findings relating thereto may not be disturbed.

The accident happened about midnight on April 8, 1928, on the state highway running from San Juan Bautista to Hollister. Both cars were traveling along the highway in an easterly direction, with respondent’s car some distance ahead of the truck of appellant. Respondent was intending to turn and did turn to the left into a road leading to a farm off the north side of the highway. There was evidence indicating that prior to the time that respondent slowed down to make the turn both cars were traveling at approximately 35 miles per hour. When respondent was about 100 feet or 110 feet from the road into which he intended to turn he looked back and saw appellant’s truck about 200 feet to his rear. He gave the signal indicating- his intention to turn, pulled slightly to the right, and then turned to the left and crossed the highway. When his front wheels were off the main highway on the north side of the road appellant’s truck struck respondent’s car, dragging it about 70 feet, where it stopped completely off the pavement on the north side of the highway. The truck went a few feet further, where it overturned and burned. The skid marks of the truck extended 70 feet west from the point of collision. The evidence was conflicting relating to the giving of a signal by respondent, but this conflict must be resolved in favor of respondent on this appeal.

In support of the contention that there was no negligence on the part of the truck driver appellant calls our attention to the fact that no witness estimated the speed of the truck