Catton v. Kerns

BARNARD, P. J. These actions were brought to recover damages for injuries sustained by the respective plaintiffs as a result of being struck by an automobile owned by the defendant corporation and driven by the other defendant. On a former appeal judgments in favor of the defendants were reversed on account of an improper instruction given ■the jury (123 Cal. App. 94 [10 Pac. (2d) 1036]). A retrial before the court without a jury resulted in a judgment for the defendants in each case, the court finding that the defendants were free from negligence and that the respective plaintiffs were guilty of negligence which proximately contributed to their own injuries. Separate judgments were entered and, by stipulation, the cases have been consolidated on this appeal.

About 2 o’clock on the morning of January 1, 1930, the two appellants and their wives left the Sunnyside Country Club and drove westerly along the highway toward Fresno, the car being driven by the appellant Shaw. After proceeding about a mile and a half they decided to return to the club. The car was stopped and the two appellants got out and walked into a field on the north side of the highway while Mrs. Shaw took the wheel and turned the automobile around so that it faced in an easterly direction. She stopped the automobile about opposite the place where the appellants had left the road, the ear facing slightly in a northeasterly direction and with its left front wheel past the middle of the highway. The appellants returned from the field and walked to the automobile. Just before they entered [376]the ear, one of them said to the other, “I want to tell yon a story, ’ ’ and, the two walked to a point slightly to the rear of the automobile and from one and a half to four feet north of the traveled portion of the highway where they engaged in conversation for about three minutes. Appellant Shaw testified that during that time they stood there talking; that the other appellant had his "arm on his shoulder; that he was facing west with his hack to any west-' bound traffic; that he knew that his car was back of him, standing at somewhat of an angle; that it was a clear night and the visibility was perfect; and that “I didn’t expect an automobile and I wasn’t looking for one”. Appellant Catton testified that as he was talking to Shaw he saw the respondent’s car coming down the highway; that this other car might have been a quarter of a mile away when he first saw it; that he did not look at it again nor pay any attention to it; that he knew that the Shaw car was between him and the other automobile and that it was headed slightly to the northeast; that he continued talking to Shaw; and that “I didn’t move. I stood in that position with this car coming west. ’ ’