State Compensation Ins. Fund v. Jorn

SLOANE, J.

The plaintiff, an insurance carrier under the Workmen’s Compensation Law of California for the employer of one Earl Summers, paid compensation to Summers for injuries received by him in an automobile accident.

[783]

The injuries inflicted were alleged to be the result of the negligent driving of his automobile by the defendant here, Carl Torn, and the insurer claims subrogation to the rights of the injured party under the compensation law (Stats. 1913, p. 279, secs. 31, 34f).

The judgment was in favor of the defendant, and plaintiff appeals. One of the issues presented by the pleadings was contributory negligence on the part of Summers. A special verdict was submitted and returned by the jury against the plaintiff on this issue.

If this finding of contributory negligence can be sustained under the instructions and the evidence, it is conclusive in support of the verdict, and the judgment must be affirmed.

Appellant attacks the finding of the special verdict on two grounds: 1. That the evidence is insufficient to show contributory negligence; 2. That there was prejudicial error in the instructions of the court upon that issue.

The undisputed facts as shown by the record are that Summers, at the close of his day’s work upon the ranch of his employer, had occasion to ride a motorcycle across a public highway which intervened between the field where he had been at work and the ranch house. This highway extended north and south. He approached it from along a roadway leading into the highway from the east, and was attempting to cross the highway to a driveway near the house on the opposite or westerly side of the highway. The entrance to this driveway connected with the highway at a short distance north of the point of intersection of the road on which he approached the crossing. According to his own testimony, he looked up and down the highway as he entered upon it and saw no vehicle excepting a wagon drawn by a team of horses or mules which was coming from the south and about forty or fifty feet from where he entered the highway. He claims that he entered upon the highway, veered his motorcycle slightly to the right toward the north so as to come opposite to the entrance to the driveway, and then crossed to the left toward his destination, when he was run into by an automobile driven by the defendant, which suddenly came upon him at a rapid rate of speed from the south, and on the westerly side of the highway, within a few feet of the entrance to the driveway.