Miller v. Southern California Telephone Co.

PRESTON, J.

Appeal by defendants from judgment entered upon a verdict awarding plaintiff damages in the sum of $6,000 for injuries sustained as a result of being hit by an automobile driven by defendant Adams, an employee of defendant Southern California Telephone Company, a corporation. The several contentions made by appellants relate to the alleged insufficiency of the evidence to support the verdict and judgment, the alleged award of excessive damages and alleged misconduct of a juror.

The accident occurred on February 15, 1928, about 7:15 P. M., where a crossroad intersects the Los Angeles-San Diego state highway at Del Mar, California. The highway was paved to a width of about twenty feet and on each side

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was a fifteen-foot dirt or gravel strip. Respondent was standing back on the graveled portion of the road, awaiting an opportunity to cross from the west to the east side thereof, when appellant Adams from the north, and a limousine and a smaller car from the south, approached the intersection. Unexpectedly the smaller car swerved to the middle of the road and passed the limousine at a point in front or nearly in front of respondent. Appellant Adams, fearing a collision and feeling that his car had been forced off the pavement, turned it on to the gravel; then, suddenly seeing respondent, he turned still further to the right to avoid striking her. This effort, however, was unsuccessful. His car hit respondent on the left knee, threw her forward some distance, turned in a semi-circle and finally came to a stop about thirty feet from where she lay.

Practically all of the evidence bearing upon the issues of negligence and contributory negligence is to be found in the detailed accounts of the accident given by respondent and by appellant Adams. Their testimony is not free from conflict. From it the jury could have believed that said appellant exercised ordinary care in that, confronted by imminent peril, he took the only course which seemed possible if an accident were to be avoided. However, the jury chose to base its verdict upon that evidence supporting the allegations of negligence on the part of the driver of the car. This conclusion, reached under conflicting evidence upon an issue of fact, of course, will not be disturbed upon appeal. The record contains evidence to the effect that respondent was standing fifteen feet from the paved portion of the highway, in a place of apparent safety, waiting for the three cars to pass, when appellant’s car turned or was forced off the pavement and that the driver thus had a space of fifteen feet in which to travel without hitting her or colliding with either of the north-bound cars. It is true that he was suddenly confronted with the peril caused by one of the north-bound cars attempting to pass the other but in this stress of circumstances he was obliged to use only ordinary care to avoid an accident and it was for the jury to decide under the evidence whether he used such care. They decided adversely to him, evidently drawing the conclusion or inference that by the use of ordinary care he could have