McCoy v. Life Savers, Inc.

BARNARD, P. J. This is an action for damages for injuries received by the plaintiff when an automobile in which he was sitting was struck by an automobile owned by the corporate defendants and driven by the defendant Burla. On the issues of negligence on the part of the defendants and [639]contributory negligence on the part of the plaintiff the court found for the plaintiff and entered judgment in his favor, from which this appeal is taken.

The accident happened about 1 o’clock A. M. on November 24, 1934, on U. S. Highway 101 at a point about three miles north of San Clemente and about half a • mile south of an underpass. The pavement at that point consists of a four-lane highway, each lane being about ten feet wide. The night was clear, there was no fog, the road was dry, straight and level, no other cars were in sight, and there was nothing to obstruct the view for at least half a mile in either direction from the point where the accident occurred.

The respondent testified that as he was proceeding south on this road he observed a lady signaling for a ride; that he stopped about one hundred feet beyond her; that he looked back and could see no cars coming in his direction; that he backed some fifteen or twenty feet and stopped again; that he could not then see the lights of any approaching car'; that he was then in the westerly or right-hand lane of the highway with his left rear wheel about on the white line between that lane and the second lane; that he then reached over to the right door of his car to open it for the lady; and that while he was in this position the crash came and he lost consciousness.

The driver of the appellants’ car testified that this car was constructed in the design of a “Life Saver” package; that the design was such that the body was perfectly straight and round with a cowl and hood higher than the ordinary car; that his headlights were good; that the respondent’s car passed him some two or three miles north of the scene of the accident; that he then observed the two tail-lights on the respondent’s car and that the headlights were operating in good order; that he observed the red lights on respondent’s car until it came to the underpass; that when he himself came out of the underpass, which constituted a dip in the highway, he again saw the tail-lights on respondent’s car about two hundred yards ahead of him; that he was traveling about forty or forty-five miles an hour when he came out of the dip; that there were no other cars on the highway; that he and the respondent were traveling in the same lane, the extreme right-hand lane; that at all times after he came through the underpass he kept his eyes on the lights of the