Lubenko v. San Joaquin Baking Co.

BARNARD, P. J. This is an action for damages brought by the heirs of Martin Lubenko, who was killed in an automobile collision which occurred at the intersection of Butler Avenue and Cedar Avenue near the city of Fresno on September 20, 1931. A Beo truck about fifteen or sixteen feet long and weighing from 5,200 to 5,500 pounds, owned by the defendant corporation and driven by the. individual defendant, was proceeding east on Butler Avenue and came into collision with a Star automobile driven by the deceased, which was proceeding south on Cedar Avenue. From a judgment in favor of the plaintiffs based upon the verdict of a jury, the defendants have appealed.

It is appellants’ theory that this intersection is what is known as a blind corner in so far as one traveling south on Cedar is concerned but is not a blind corner to one traveling east on Butler; that the impact of the two vehicles occurred in the southeast comer of the intersection; that this fact demonstrates that Lubenko was traveling on the wrong side of Cedar Avenue; and that the only logical inference that may be drawn from the evidence is that Lubenko, while traveling at an excessive rate of speed on the wrong side of [129]the road, entered the intersection without looking and crashed into the side of the bakery truck.

It is first insisted that the -evidence conclusively shows that the driver of the truck was free from negligence. This driver testified that his speed as he proceeded east on Butler was not more than thirty miles an hour at any time; that when he arrived at a point about 110 or 115 feet west of the intersection he looked to his left and saw no car coming; that when he was within 100 feet of the intersection he could see “better than” 200 feet north on Cedar; that after so looking to the north he looked to the south and saw an automobile" coming north on Cedar; that he was watching this other car; that as he entered the intersection he again looked to the north and saw the Lubenko car almost entering the intersection; that he immediately put his foot on the brake but at the impact of the cars he lost control of his truck and drifted into the fence on the other side; that he did not think he was going more than twenty miles an hour as he entered the intersection; that it appeared to him that the other car was coming at about the same rate of speed or maybe a little faster; that the two cars came together on the southeast corner; and that after his car came to a stop he backed up from four to six feet and stopped.

On the other hand, there was evidence that the Lubenko car came to rest on Butler Avenue about fifty feet east of the center line of Cedar Avenue; that the truck first stopped about 100 feet east from the center of the intersection; and that the driver thereof then backed the truck some forty-five or fifty feet and stopped between the Lubenko car and the curb. One witness testified that he lived about two blocks from the scene of the accident; that he heard the impact and ran to the alley, where he had a clear view of what had happened; that he went right over to the scene of the accident; that the Lubenko car was on Butler Avenue about fifty feet east of the center line of Cedar; that the radiator and the front of that car were not damaged; that the side of that car was crushed in and the frame was bent and the front wheels were broken off at the hub; that there were marks on the oiled surface of Butler Avenue beginning at a point about six feet south of the center line of Butler and about three or four feet east of the center line of