Mesnickow v. Fawcett

NOURSE, J.

Three separate actions were instituted against a number of defendants for personal injuries incurred in an automobile collision. The three actions were consolidated for trial, by stipulation, before the court sitting without a jury. Separate judgments were rendered in favor of each of the three plaintiffs and against the defendant Catelli alone. This defendant has appealed on typewritten transcripts and, by stipulation, these appeals are heard under the title designated above.

The three plaintiffs were riding in a Studebaker automobile as the business guests of Mrs. K. E. Fawcett at about 7:30 P. M. of the evening of November 10, 1926, on a public highway about three miles north of the town of Windsor in Sonoma County. Preceding them on the same highway the defendant Catelli had driven a Chevrolet truck in the same direction. He found he was having trouble with the motor of the truck, and, fearing that he was out of gas, pulled off to the right side of the highway, stopped and went back to, the gas tank to test the gas. While the truck was thus standing in this position the defendant Fawcett, traveling at a rate of twenty-five or thirty miles an hour, crashed into it causing the injuries to the passengers for which they sued. Mrs. Fawcett was joined with Catelli as a party defendant.

The trial court found that the defendant Catelli was negligent in parking the truck on the side of. the highway and that the defendant Fawcett was neither careless nor negligent in the manner in which she operated the Studebaker car. The appeals from the several judgments are based upon these findings. Particular criticism is made of the finding of want of negligence on the part of defendant Fawcett. The evidence is that she was traveling on a public highway which gave a straight stretch of more

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than a mile before the point of collision. She claimed she had been blinded by the headlights of another ear passing in the opposite direction which came around a curve in the highway just prior to the collision. But this curve was shown to have been a quarter of a mile beyond the point of collision. She had, therefore, ample warning of the approaching danger caused by the blinding lights. When confronted by such conditions it is the duty of the operator to use more than ordinary care to avoid striking objects on his path which are temporarily hidden from his view. Such is the rule of