Barr v. Hall

BARNARD, P. J. This is an appeal from a judgment in favor of the plaintiff for injuries sustained in an automobile collision. The sufficiency of the evidence is not attacked, for obvious reasons, but error is assigned in the giving of one instruction and in the refusal of another, in connection with which the appellant points out certain evidence which Will be briefly summarized.

The accident occurred at the intersection of Clinton and Thorne Avenues, on the outskirts of Fresno. The appellant was driving a coupe west on Clinton Avenue and the respondent driving a sedan south on Thorne Avenue, and the cars came together at the southwest corner of the intersection. The respondent testified that she had been drivjng at 35 or 40 miles an hour but had slowed down farther inorth on Thorne Avenue; that as she approached the intersection in question she did not have her foot on the accelerator and was “rather coasting along”; that she looked to hei left, the direction from which the appellant was coming, bu¡t was unable to see very far because of certain obstructions at that corner; and that just after she entered the intersection she saw the appellant’s car which was then beyond a certain house and approaching at a very fast speed. It appears from other evidence that this house is about 130 feet from the intersection. She then testified that the appellant gave no indication of having seen her so she put her foot o|n the accelerator and speeded up.

The appellant testified that as he came over a rise some 400 feet east of this intersection he was traveling at from 35 to 40 miles an hour; that when he was opposite the east side of the house above referred to he observed the respondent ts car coming south on Thorne Avenue; that he continued to watch it until both cars were about at the intersection from which time he did not see it until just as he collided with it j and that during the interim he was looking south on Thorne Avenue trying to make a turn and get his car parallel with the respondent’s car in order to avoid an accident. He further testified that he applied his brakes when he first sa-^ the respondent, at a point which other evidence shows to be [491]about 130 feet from the east line of Thorne Avenue; that at that time he applied his brakes without using much force and proceeded in that manner for a distance of 65 feet; that at that point he thought that an accident was possible and applied his brakes with the definite purpose of stopping as soon as possible; that when he had gone about half of the remaining distance to the beginning of the intersection, the brake locked his wheels; that the locked wheels left skid marks for about 60 feet from there to the point of collision; that when he thus entered the intersection he was going about 25 miles an hour; that he did not see which car entered the intersection first; and that he struck the respondent’s car when it was practically through the intersection, the rear thereof being approximately on the south line of Clinton Avenue.