Sellers v. Wood Hydraulic Hoist & Body Co.

LANGDON, J.

This is an appeal by defendants from a judgment against them for $20,000 in an action for personal injuries suffered by the plaintiff as the result of an automobile collision at the intersection of Third Avenue and East Eleventh Street, in the city of Oakland, California.

The plaintiff was riding in a Ford coupe driven by her chauffeur. This automobile was proceeding south on the west side of Third Avenue. The testimony shows that as it approached the north curb of Eleventh Street it slowed down and stopped momentarily and then proceeded to cross the street slowly. The defendant corporation’s Hudson automobile, driven by its employee, defendant Lynn, approached the crossing along the center of Eleventh Street at a rapid rate of speed, according to the testimony, traveling east and was some sixty or eighty feet west of the intersection at the time the Ford coupe entered it. The testimony shows clearly that the Ford coupe had the right of way over the Hudson automobile approaching from the right. Indeed no argument is made by appellants that the record does not establish the negligence of defendants, but the position is taken that contributory negligence was shown. The day was clear and the street was dry. The coupe had passed the center of the intersection when the Hudson car crashed into it, striking it in the side toward the rear. The Ford coupe was overturned and the plaintiff was seriously injured. In the brief filed by the appellant Lynn but one point is argued; that the plaintiff was guilty of contributory negligence by imputation to her of the alleged contributory negligence on the part of her driver. Appellant Lynn also adopts the points urged by the appellant corporation in its opening brief. The corporation appellant adopts the argument of Lynn on contributory negligence and urges other points of alleged error which we shall consider hereinafter.

There is no merit in the argument that plaintiff was guilty of contributory negligence. It is based entirely upon the proposition that at the time the driver of the Ford coupe stopped before entering the intersection, he did not see the Hudson automobile. It is urged that if he had

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looked, he must have seen. This conclusion does not necessarily follow from the record. The evidence shows that he was driving a closed car which must have obstructed the view to some extent