Conner v. Dale

RICHARDS, J.

This action arose out of an automobile collision in the city of Fresno on or about the sixteenth day of January, 1921. Plaintiffs were proceeding in their machine in a southerly direction on Blackstone Avenue in said city and defendant was traveling in a general westerly direction along Divisadero Street in the same city. Blackstone Avenue and Divisadero Street intersect at right angles. The record does not disclose the exact widths of either of these two intersecting streets, although it does appear that Divisadero Street is a narrow street, while Blackstone Avenue is a much wider street and is, in fact, wide enough to accommodate a double line of street railway tracks with ample space for its ordinary vehicle travel. It is alleged that defendant, by reason of his careless, negligent, and reckless driving and management of his automobile, violently ran into and collided with plaintiffs’ machine at the intersection of said streets, causing plaintiffs’ automobile to be wrecked and demolished to their damage in the amount of $1,000; and that by reason of this collision the plaintiff Bertha Conner sustained severe injuries, the nature and extent of which are specifically set forth in the complaint, necessitating treatment in a hospital for fifteen days and was confined to her bed for a period of four months; that by reason of said treatment, attendance of nurses, purchase of drugs, and medical supplies, plaintiffs have incurred expenses in amount of $400 and liability for physicians’ services $300. Plaintiffs therefore prayed for judgment in the

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sum of $11,700 and costs. The trial came on for hearing before the court without a jury, at the conclusion of which the court filed its findings of fact and conclusions of law, finding that the injuries suffered were due to the carelessness, negligence, and recklessness of defendant and assessing damages in the sum of $6,700 and costs. Judgment was rendered accordingly. Defendant thereupon moved for a new trial, which the court ordered denied. From said judgment defendant now prosecutes this appeal.

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Appellant’s first contention is that there is no evidence to support the finding that the defendant drove his automobile carelessly, negligently, and recklessly. There is substantial conflict in the testimony with regard to the speed of the automobiles and their position when moving just prior to the accident, plaintiff L. H. Conner stating that be first saw the lights of defendant’s car when bis, Conner’s, machine was about ten feet north of Divisadero Street and that defendant’s car at that time was about to enter the square forming the intersection of the two streets; that he was going about fifteen miles per hour, and estimated that defendant was traveling about twenty-five miles per hour; that “I said something to my wife at that time about the car' and ,1 kind of looked back over my shoulder and I seen it was going to hit us and I tried to give her the speed, and being a new ear she wouldn’t get away. I tried to avoid him hitting me and he swung to his left and pinned us against the post on that corner.” Mrs. Bertha Conner corroborated the statements made by her husband. On the other hand, defendant testified that “After I had practically crossed the second track, an automobile whipped out from behind the car at a very terrific rate of speed.” Defendant estimated his speed at from ten to twelve miles per hour and was corroborated in this regard by L. F. Ward, a passenger with him in his machine, and H. Beaverson, motorman on the street-car which Conner states he passed thirty feet back from the intersection going in the same direction. The motorman testified that he first saw defendant’s ear when the same was on the east car track and that “I had to slow down, applied my air going across there.” This witness testified that he did not see the Conner machine.