McDonald v. Cantley

SEAWELL, J.

Plaintiff appeals from a judgment entered in a personal injury action in the above-entitled causes upon a jury’s verdict rendered in favor of Richard Cantley and Joseph Tanzola, partners doing a trucking business under the partnership name of Cantley & Tanzola, and E. L. Cook, the latter being employed as a driver for said trucking company. D. F. Staley was an original defendant in the action, but having defaulted a judgment was entered against him in the sum of $7,400, after the trial of the action from which this appeal is taken.

' The injuries were inflicted upon plaintiff on the afternoon of May 21, 1927, while he was engaged in making borings

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upon the northerly slope of Cahuenga Pass, at a point where the Dark Canyon road leads to the right from said highway, for the purpose of testing the soil with the view of constructing a sewer therein. At the time of the accident the traffic on said Cahuenga Pass was very congested, there being two or more lanes of automobiles traveling southerly and one lane traveling northerly. Plaintiff had drilled a hole with a hand drill, by turning a handle affixed to the drill, some six feet into the earth, which left the balance of the drill about eighteen inches above the earth. He was upon his knees operating the drill at a point some six or seven feet easterly of the east edge of the pavement. His truck was parked from six to ten feet northerly from where he was working, and it was either wholly off the pavement or possibly the two left wheels may have been upon the pavement a few inches from the outer edge. While in this position he was struck by the truck driven by E. L. Cook, who was then in the employ of said copartnership. Mr. Cook, a young man twenty-one years of age, was traveling northerly on said highway downgrade, within one foot of its easterly edge, driving an American La France six-wheel dump cart weighing seven tons. His rate of speed, as testified to by a number of witnesses, was between ten and twelve miles per hour. Immediately behind him was A. Weise, who was on his way to the Hollywood Country Club. Stanley Terwhilliger, driving a truck, was immediately behind Mr. Weise. The highway was practically covered by automobiles. D. F. Staley, who was driving a Dodge coupe weighing about 2,800 pounds, was first noticed passing Terwhilliger, and next in attempting to pass Mr. Weise and the Cook truck. As Staley undertook to leave his lane of travel to pass Weise and Cook, he observed a truck coming southerly toward him and in his effort to avoid being hit by it he turned his car to the right, traveling at the rate of thirty or thirty-five miles per hour, barely grazing the truck on his left, and in attempting to clear it he steered into the truck driven by Cook to his right. He gave no alarm whatever of his approach. The right fender of Staley’s car, just before it reached the point opposite to where plaintiff was at work, struck the hub cap of the truck driven by Cook. The impact swerved the truck to the right, and caused- Cook to lose control of the steering-wheel, and before