Ingram v. City of Delano

BARNARD, P. J. The defendants have appealed from a judgment in favor of the plaintiffs in an action for damages [452]resulting from a collision between an automobile driven by Mrs. Thelma Ingram and a truck owned and operated by the defendants.

At the time of the collision, which occurred in February, 1937, both vehicles were traveling north from Delano on an oiled road, the oiled surface of which was about eighteen feet in width, the Ingram car traveling behind the truck and at a higher speed. Mrs. Ingram pulled to her left to pass the truck and shortly thereafter the driver of the truck turned the same toward the left side of the road and into her path, at a place where there was no road leading to the left. A collision occurred, although Mrs. Ingram then turned her car further to the left in an effort to avoid the truck. The case was tried without a jury and the court found that the driver of the truck was guilty of negligence, that Mrs. Ingram was not guilty of negligence, and that no negligence on her part proximately caused or contributed to any resulting injury or damage.

The appellants, admitting that the driver of the truck was guilty of negligence in failing to give any signal of his intention to turn to the left, contend that Mrs. Ingram was guilty of contributory negligence in failing to sound her horn before overtaking the truck, as required by subdivision (b) of section 528 of the Vehicle Code; that both parties were guilty of negligence per se; and that the evidence is insufficient to support either a finding that Mrs. Ingram was not guilty of negligence, or a finding that her negligence was not a proximate cause of the accident.

The appellants contend that it conclusively appears that Mrs. Ingram did not sound her horn soon enough, and that such negligence must be held to have been a proximate cause of the accident. This is based upon the contention that a portion of the testimony given by Mrs. Ingram establishes the fact that she did not sound her horn until the front wheel of her car was opposite the rear wheel of the truck and that, under the decision in Duncan v. J. H. Corder & Son, 18 Cal. App. (2d) 77 [62 Pac. (2d) 1387], her failure to give audible warning before attempting to pass the truck constitutes such negligence as must be held to have been a proximate caiise of this accident. It was pointed out in that ease, however, that the evidence therein was conflicting and that “the responsibility to place their own value on contradictory [453]