Nix v. Woodworth

YORK, J. The plaintiffs in separate actions sued the defendants for damages on account of personal injuries sustained by them in a collision between a motorcycle, which was being driven by plaintiff Engle and on which the plaintiff Nix was riding as a passenger, and an automobile, which was owned by defendant Woodworth and which was being operated by defendant Henning with the permission of defendant Woodworth.

The two actions were tried concurrently and each resulted in a verdict and judgment in favor of the plaintiff therein in the sum of '$15,000, of which amount the first $5,000 was assessed against both defendants, and the remaining $10,000 was assessed against defendant Henning only. The appeals of defendants from these two judgments are presented here in the form of a consolidated bill of exceptions.

It appears from the record that the plaintiffs, with plaintiff Engle driving, were proceeding from Los Angeles to Tujunga on a motorcycle, via Glendale Boulevard to the point where it runs into Verdugo Road, where they stopped to smoke. They then proceeded northerly on Verdugo Road to the point where Canada Boulevard intersects said Verdugo Road .at an angle to the west. Defendant Henning, with his wife seated beside him, was driving an automobile northerly on Verdugo Road, and when he reached the intersection of Verdugo Road and Canada Boulevard, he made a left-hand turn into a service station, which is located at the flatiron intersection of the two named boulevards, proceeded westerly through the service station to the driveway on the easterly curb of Canada Boule[324]vard and started in low gear across the boulevard to the west in order to make a southerly turn into Canada Boulevard. Meanwhile the motorcycle was approaching the intersection at a speed of approximately thirty-five miles per hour, making a gradual turn to the left into Canada Boulevard, keeping to the right of the buttons in the center of the street. Plaintiff Engle, the operator of the motorcycle, testified that he saw the automobile coming out of the driveway at a slow rate of speed and that it proceeded very slowly until it was about four feet ahead and to the right of his motorcycle, when the automobile made a sudden spurt forward and collided with the motorcycle, causing the injuries complained of, as a result of which each of the plaintiffs suffered the loss of his right foot, and each of the plaintiffs was discharged from the navy because of such loss.

Appellant Henning testified that he saw the motorcycle when it was about 450 feet south of him on Verdugo Road; that, as he pulled out of the service station, he took his eyes from the left and watched the right; that he saw the motorcycle again before the collision and that it was probably thirty feet away when he saw it again, and at that time his machine was somewhere near the middle of the street; that he then stepped on the brake and clutch and did not at any time “step on the gas”; that he did not accelerate his speed when he saw the plaintiffs the second time, and as soon as he saw them he stepped on the clutch and brake; that when he saw the motorcycle the second time, it was coming toward him at a speed of at least fifty miles per hour and was traveling in a wide curve to the left, leaning to the left-hand side.