Munoz v. Kennedy

MR. JUSTICE Pro Tem. TUTTLE Delivered the Opinion of the Court.

This is an action brought to recover damages for personal injuries received in an automobile accident. The court, sitting without a jury, gave judgment for plaintiffs, and this appeal is taken from the judgment.

Two grounds are relied upon for a reversal. The first is, that the court erred in denying a motion for a nonsuit, based upon the contributory negligence of plaintiffs. The second is, that the finding of the court that defendant was negligent is not supported by the evidence.

Prom the record it appears that on January 29, 1929, James Allen Joy, fourteen years of age, was driving an automobile in a northerly direction on the highway, near Arbuclde, California. His sister, Althea, aged twenty, was with him. His ear was a very old one. It had formerly been a taxicab, and was equipped with a box body built in the rear of the cab. It is referred to in the evidence as a “truck”, and was traveling at a speed of some twenty miles per hour. Defendant Kennedy was the owner of a Chrysler coupe which was being driven by defendant Moulton. Miss Kennedy and her grandmother were passengers. The coupe was equipped with a rear view mirror, and the window upon the driver’s side was open. The third ear involved was being driven by plaintiff A. T. Munoz, who was accompanied by his wife (plaintiff Daisy Y. Munoz) and their small child.

As the truck was moving along the highway the coupe approached from the rear and moved into a position some twenty-five feet behind the truck. Plaintiffs’ car now also came up from the rear, at a speed of some thirty-five miles per hour. When about fifty feet away the driver of plaintiffs’ car sounded his horn and started to pass both the

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car and truck. When the front wheels of plaintiffs’ car were opposite the rear wheels of defendants’ car, the latter turned out suddenly to the left and across the path of plaintiffs. In order to avoid a collision, plaintiffs’ driver was compelled to leave the highway and run upon loose gravel, where his car skidded and ran into a bank, resulting in serious and permanent injuries to Mrs. Munoz. It was admitted by the driver of defendants’ car that she did not look into the rear view mirror before attempting to turn out. The occupants of the truck testified that they heard but one signal given from the rear. They were unable to state which car gave that signal. In view of the fact that plaintiffs testified that their horn was sounded some fifty feet in the rear of the coupe, the trial judge could reasonably have inferred that defendants gave no signal when they attempted to pass the truck.