Kennedy v. Berg

THOMPSON, J. The defendant has appealed from a judgment of $1854 which was rendered against him for personal injuries received by the plaintiff as a result of negligence in an automobile collision which occurred at the intersection of streets in the town of Atwater.

It is contended the verdict and judgment are not supported by the evidence, chiefly because it is asserted the plaintiff was guilty of contributory negligence in attempting to cross the pathway of an approaching machine, at the intersection of streets, without first assuring himself that the turn could be safely made, as provided by section 130, subdivision (a), of the California Vehicle Act, and that the defendant’s motions for a nonsuit and for a new trial were erroneously refused on the same ground.

There is no merit in the appeal. The state highway runs north and south through the town of Atwater. In the center of the town the highway is intersected at a right angle by Third Street. Both streets are sixty feet in width, and paved along the centers thereof for a width of twenty feet. They were straight and level for a considerable distance in both directions from the intersection. White painted lines and a conspicuous button marked the intersection.

The plaintiff operated a light Pontiac automobile, and the defendant- drove a heavier Oldsmobile sedan. Both parties were familiar with the streets of Atwater. The plaintiff had lived there for six months. The defendant was the local managing agent of the Northern Life Insurance Company and had driven through Atwater on an average of every ten days for some time past. Accompanying the defendant on the day of the accident was another agent of the same company, by the name of Rudd. December 13, 1934, at 9 o’clock in the morning, the plaintiff was driving south along the highway with the intention of turning to his left on Third Street to go to the postoffice. It had been raining that morning, and the pavement was wet. But it was not raining at the time of the accident. At that time the de[55]fendant was approaching Atwater from the south. He was on his way from Fresno to Turlock. When the plaintiff reached a point about 100 or 150 feet northerly of the intersection, he observed the defendant approaching along the same highway from the south at a distance of approximately a hundred yards from the intersection. The plaintiff slackened the speed of his ear to about 12 or 15 miles an hour, and extended his arm as a signal for a left turn on Third Street. The defendant was then running at the rate of 40 or 50 miles an hour. The plaintiff testified that when he started to make the turn the defendant’s machine was “a hundred or a hundred and fifty feet back ...” from the intersection, and that “it was so far off when I crossed, I didn’t figure it would ever hit me”. The plaintiff succeeded in making the left turn on his proper side of the street, and passed the button at the intersection when his machine was struck by the defendant’s car just back of his right front wheel. The plaintiff said the force of the collision “tore it (his machine) all to pieces”. He was hurled from his car and sustained a broken wrist and a fractured shoulder, together with numerous bruises and cuts. Mr. Walters, the chief of police of Atwater, corroborated the plaintiff in his statement that he retarded the speed of his car to about 10 or 15 miles an hour as he approached the intersection; that he properly extended his arm as a signal for the left turn and negotiated the turn on his proper side of the street, being struck after he had passed the center button by the defendant’s machine, which was traveling at the rate of 40 or 50 miles an hour. The chief of police said that when the plaintiff’s car was struck, “he flew out like he was catapulted out like from a gun and went up in the air and landed on the back of his head and shoulders”.