Ackerman v. Griggs

NOURSE, P. J.

Plaintiff, a minor, sued through her guardian for personal injuries received when a motor vehicle, driven by her father and in which she was riding as a passenger collided with a motor vehicle driven by defendants. The cause was tried with a jury, which returned a verdict for defendants. The plaintiff appeals on typewritten transcripts.

Plaintiff was riding east on the main highway from Oakland to San Jose. Defendants were driving north on the Dumbarton Road. As defendants approached this highway at Machedo Comers they stopped for traffic to pass. They then started in low gear into the southerly half of the highway with the purpose of turning to the left and into the highway in the direction of Oakland. As defendants thus entered the highway they observed plaintiff’s car approach

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ing from the left at a distance of two hundred feet. Because of the west-bound traffic on the highway the defendants were unable to complete the turn immediately and thus blocked the southern half—their machine standing directly across the plaintiff’s line of traffic. While in this position the plaintiff’s father applied the brakes to his car, swerved off the paved portion of the highway and “skidded” into the rear of the defendants’ car, causing the injuries to the minor child. The evidence disclosed that when plaintiff’s father applied the brakes to his machine “skid” marks were made upon the highway for nearly one hundred feet.

The cause was tried on plaintiff’s theory that the defendants were negligent in driving into the southern portion of the highway and stopping before crossing or turning into the northern half. The case was defended on the theory that the defendants were without negligence—that they did just as an ordinarily prudent man would have done under the same circumstances. It must be conceded that the evidence unmistakably supports the jury’s verdict for the defendants, and that the sole and proximate cause of the accident was the negligent and reckless driving of plaintiff’s father. Under such circumstances the judgment must be affirmed unless the errors assigned are found to be prejudicial.

Appellant first complains of the action of the trial court in refusing to give the proposed instruction found on page 246 of the typewritten transcript. There was no error as the proposed instruction was one on the facts which were not supported by any evidence. The uncontradieted evidence was that when respondents entered the highway appellant’s car was so far away that an accident could not have happened unless it was driven with reckless disregard of the rights of others.