Garns v. Halpern

The following opinion, prepared by Mr. Justice Kerrigan prior to his retirement, is hereby adopted as the opinion of the court:

. This is an appeal by defendant from an order granting the plaintiff’s motion for a new trial based upon the ground of insufficiency of the evidence to support the verdict.

The action was one to recover the sum of twenty thousand dollars as compensation for personal injuries, loss of earnings, and damage to property resulting from a collision between the motorcycle of the plaintiff, upon which he was riding, and the automobile of the defendant. Trial was had by jury, which returned a verdict for one dollar. Being dissatisfied with the verdict the plaintiff moved for a new trial, which was granted, as above mentioned, and the defendant appeals.

In support thereof the appellant urges, first, that there is no substantial evidence of any negligence on the part of the defendant in connection with the collision; and, second, assuming that the evidence might support a finding of such negligence, it also shows beyond question and as a matter of law that the plaintiff’s own negligence proximately contributed to his injury; that the verdict of the jury in plaintiff’s favor, although only for one dollar, was erroneous, but that it is not an error of which the plaintiff can complain, and afforded no ground for the granting of a new trial at his instance.

We are of the opinion that appellant’s contention with respect to the contributory negligence of the plaintiff must be sustained.

The evidence in the record shows that on the night of June 23, 1920, at about the hour of 9:40 P. M., the defendant in his automobile was driving on Bast Twelfth Street, Oakland, and was engaged in making a left turn to bring him into Fourteenth Avenue, an intersecting street, and that the plaintiff, driving a motorcycle in an opposite direction on Bast Twelfth Street, ran into defendant’s automobile before it had succeeded in clearing Bast Twelfth Street

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and entering the avenue. There is some evidence in the record from which the jury might have inferred that the defendant undertook to make this turn before passing the medial line of the intersection. Assuming that the jury took this view, the evidence further shows without contradiction that before commencing to turn the defendant brought his machine to a complete standstill; that he gave the proper signal that he was about to turn; that he looked in the direction from which the plaintiff’s motorcycle was approaching and did not see it, it not being equipped with the headlight required by law; that his automobile was struck by the motorcycle of plaintiff almost immediately after starting up and while making the turn and before his automobile had acquired a speed greater than eight miles an hour; that his two headlights (which complied with legal requirements) were lighted and visible to the plaintiff had he looked, which in duty he was bound to do; that, on the other hand, the plaintiff’s motorcycle was not equipped with the headlight required by law, which would have aided the plaintiff to discover the presence of defendant’s automobile, and the defendant to have perceived the plaintiff’s approach, but in lieu thereof the plaintiff held in his hand a small flashlight, not capable of revealing objects more than twenty-five feet distant even if its beams had been directed ahead of the motorcycle; that the plaintiff drove his motorcycle thus unequipped with the legal headlight-at a rapid rate of speed across the intersection of the streets in question in the darkness of night; and it is also to be noted (although this circumstance cannot, perhaps, be said to have contributed to the collision with the same certainty as the other negligent acts referred to) that although the motorcycle was constructed for carrying only one person the plaintiff was carrying a passenger upon it, who was seated upon the rear fender with both legs on the left side of the machine, the testimony showing that his presence in this position interfered with the proper operation of the motorcycle.