Flach v. Fikes

CURTIS, J.

Action brought by the administratrix of the estate of Conrad Flach, deceased, under section 377 of the Code of Civil Procedure to recover damages from defendant by reason of the death of said deceased, alleged to have resulted from the negligence of said defendant in the operation of the latter’s automobile. The trial was had before the court without a jury and resulted in a judgment in plaintiff’s favor, from which the defendant has appealed. Defendant’s first contention is that the evidence fails to show that he was negligent in the operation of his automobile. There is no contention but that the defendant in driving his automobile collided with and struck the deceased, inflicting upon him fatal injuries from which he died a few hours thereafter. The collision occurred at about half-past 2

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o’clock in the morning of January 8, 1922, on Soquel Avenue, a business street in the city of Santa Cruz. The deceased had just alighted from an automobile driven by F. K. Lang and was in the act of crossing said street to his residence when he was struck by defendant’s machine. The question of defendant’s negligence depended entirely upon the rate of speed he was traveling at the time he struck the deceased. He claims that his machine was traveling at that time between 14 and 15 miles per hour. In proof of this fact he testified that he brought his machine to a full stop within 35 feet after he struck the deceased. If this were so, it appears to be conceded that he was not exceeding the lawful rate of speed along said street at the time of the collision. On the other hand, it is the theory of the plaintiff that if he did not bring his machine to a stop substantially within said distance he was guilty of negligence in exceeding the lawful speed limit, which was 15 miles per hour on said street at the point where the collision occurred. There is ample evidence in the record that defendant traveled from 54 to 65 feet after his machine had struck the deceased and before he had brought it to a full stop. One witness put the distance at 70 feet. There were found on the street immediately after the collision in one place a number of pieces of broken glass which, the evidence indicated, came from one of the front lights on defendant’s machine, which was broken as a result of the collision. There was also found some distance from these pieces of glass a pool of blood in the street, which evidently came from the deceased’s body, after it had been dragged by defendant’s machine from the point of the collision to the point where defendant brought his machine to a stop. This distance between the broken pieces of glass and the pool of blood was roughly measured by a number of persons on the morning of the collision, with, the result that, though their testimony differed as to the exact number of feet between the two points, none of them gave it at less than 54 feet, while others placed it at a greater number. The trial court evidently adopted their statements regarding this distance and accordingly found that defendant was negligently driving his automobile at the time it collided with the deceased. The evidence was undoubtedly sufficient to sustain this finding.