Bennett v. Chanslor & Lyon Co.

SEAWELL, J.

Defendants appeal from a judgment rendered for plaintiff in an action to recover damages for personal injuries received when an automobile in which she was riding, and which was being driven by her husband, was struck by an automobile operated by defendant E. C. Kellogg. Defendant Chanslor & Lyon Company, a corporation, was the owner of the automobile operated by defendant E. C. Kellogg, whom it employed in the capacity of credit manager in the San Joaquin Valley district. The jury rendered a verdict for plaintiff against both defendants in the sum of $9,041. Defendants’ motion for a new trial was thereafter denied on condition that plaintiff file a remission consenting to the reduction of the damages to $5,000. Plaintiff filed the required remission.

Appellants contend that there is an absence of evidence of any negligence whatsoever on their part, and that the proof shows as a matter of law that the proximate cause of the accident was the negligence of plaintiff’s husband, with whom she was riding, which negligence was imputable to her and bars her right of recovery upon the authority of

Basler

v.

Sacramento Ry.,

158 Cal. 514 [Ann. Cas. 1912A, 642, 111 Pac. 530], and decisions following that case. It was there held that the negligence of the husband precluded recovery by the wife, for the reason that any damages recovered would be community property over which the husband would have the right of management, and to permit recovery for injuries of the wife would be to allow the husband to profit by his own wrong. We are of the opinion that the Basler case does not rule the instant case for the reason that the jury presumably obeyed the court’s instructions, which were to the effect that if the husband was guilty of contributory negligence the wife was not entitled to recover. The jury, therefore, impliedly found that the husband was not guilty of negligence proximately contributing to the accident.

[104]

The accident occurred between 6:30 and 6:40 P. M. on October 4, 1924, at the intersection of Van Ness Avenue and Stanislaus Street in the city of Fresno. The sun set at 5:38 on said date. Both streets are busy thoroughfares. The car in which plaintiff was riding, a National touring car, was proceeding westerly on Stanislaus Street. Defendant Kellogg was moving in a northerly direction on Van Ness Avenue in the automobile owned 'by defendant Chanslor & Lyon Company, which was a Nash roadster.