Shupe v. Rodolf

OLNEY, J.

The present action is one for damages for personal injuries suffered by the plaintiff as a result of a collision between a motorcycle upon which he was riding and the automobile of the defendants. The cause was tried before a jury, which returned a verdict for the plaintiff, upon which judgment was entered. The defendants appeal.

The chief contention of the defendants is that the verdict is not supported by the evidence, in that it shows that the plaintiff was himself guilty of contributory negligence. The accident took place on American Avenue, in the city of Long Beach. The street is apparently what may be described as a double street, that is, there are two distinct and parallel ways, separately curbed and separated by a space not used for travel. The street runs north and south, and the easterly of the two ways is called American Avenue East, and is but twenty-six and a half feet in width. At the time of the accident the defendants were proceeding south in this, the left-hand way, as they were going, and the plaintiff was

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coming north on the same way. The testimony is in sharp conflict as to whether the defendants were on the right-hand side of the way or not, and as to just how the accident took place. Taking the view of the evidence most favorable to the plaintiff, as we must do, the defendants were proceeding a little to the left of the center line of the way, as they were going, and the plaintiff was several feet to the right as he was going. As the two vehicles approached close to each other, the defendants turned still farther to the left, and the plaintiff turned to his right so that the two met.

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The accident, in other words, according to the evidence for the plaintiff, was the not infrequent one of two cars directly approaching each other, one of them on the wrong side of the road, and where the two drivers in endeavoring to avoid a collision both turn to the same side, so that a collision results. In such a ease, it is evident that responsibility for the accident rests primarily with the driver who was not on the right side of the road in the first place and who turned to the wrong side in the second place. The contention that the plaintiff was guilty of contributory negligence is rested upon the fact that the evidence showed that at the time of the collision there was an open space of at least six feet between the car of the defendants and the curb on its left; that the plaintiff was, according to his testimony, going slowly, and that he could have turned his machine still farther to the right and passed the defendants in the open space mentioned.