Winger v. Elmore

KNIGHT, J. Plaintiff brought this action to recover damages for injuries sustained in a collision between his automobile and one driven by defendant, alleging that the collision was proximately caused by the defendant’s negligence. Defendant, answering, denied he was negligent, and interposed a cross-complaint alleging that the collision was proximately caused by the negligence of plaintiff. The trial took place before a jury, which decided in effect that the accident was due to the concurrent negligence of both parties, and that therefore neither was entitled to damages. Judgment was entered accordingly, and defendant appeals from that portion thereof denying him relief, urging as first ground for reversal insufficiency of the evidence to justify the implied finding of the jury that he was negligent, and that his neg[243]ligence proximately contributed to the happening of the accident. There is no merit in the point.

The accident happened during the month of June, about 7 o’clock in the evening, on the main highway between Livermore and Hayward, known as the Dublin Canyon highway, where it is intersected but not crossed by a side road known as Santa Rita Road. Plaintiff was traveling easterly along said main highway and defendant was driving northerly along the Santa Rita Road. The collision occurred within the intersection, as defendant was making a left turn therein. Along and upon the Santa Rita Road near the junction thereof with the main highway there are four separate warnings of the presence of the intersection. The first is a “Cross Road” sign attached to a post on the easterly side of the Santa Rita Road. A little nearer the intersection there is another sign upon and across the easterly side of the road displaying the word “Slow” in large white letters. Still closer to and about ninety feet from the intersection there is a regulation arterial “Stop” sign on the easterly side of the road; and fifteen feet from the main highway the word ‘ ‘ Stop ’ ’ is painted in large white letters across the Santa Rita Road. Defendant, being a resident in that locality, traveled very frequently over both roads, and was familiar with the traffic conditions at said intersection. He admits that he did not stop at the regulation arterial stop sign along the side of the Santa Rita Road, but claims he did stop at the last stop sign painted in white letters across the road. Testimony was given to the contrary, however, by plaintiff and two other witnesses who stated positively that defendant did not stop at all before entering the main highway; that he drove right on into the intersection directly in the pathway of plaintiff’s oncoming car. Therefore, in view of the foregoing conflict in the testimony, so far as the issue of defendant’s negligence is concerned, we are bound by the conclusion reached by the jury and by the implied finding of the trial court in denying defendant’s motion for new trial.