Holmes v. Koepsel

GRIFFIN, J. Plaintiff and respondent brought this action to recover damages for personal injuries resulting from the collision of defendant and appellant’s automobile with respondent’s horse-drawn three-wheel wagon. The accident occurred on Newport road east of Santa Ana, in the county of Orange, on the 27th day of October, 1937. The appellant was driving his ear through the outskirts of Tustin and proceeding north on Newport road. The respondent was transporting equipment, used for plowing and cultivating farm land, on the wagon.

Respondent testified that he quit his cultivating work a little before 5 P. M., loaded his wagon with his equipment, and proceeded through Tustin and north on Newport road [794]towards his home. It was stipulated that there were no lights on the rear of the horse-drawn vehicle. The two-lane pavement upon which respondent and appellant were driving was about 16 feet wide with an 18-inch shoulder on either side. Respondent’s wagon was moving slowly along the right side of the road with the two rear wheels straddling the right edge of the paved portion. As appellant was proceeding northerly in the same direction as respondent, he noticed the lights of three other vehicles, one traveling in the same direction, which he proceeded to pass, a second car making a boulevard stop at a dead-end intersection to his left, some distance ahead, and a third car approaching from the opposite direction. About the time appellant had passed the first car and was resuming his position on the right side of the roadway, he came to a point, about even with the second car which was making the boulevard stop. As he passed the stopped car, which was on his left, he approached within about 60 to 80 feet of the third car, that is, the oncoming ear. He then noticed for the first time an obstacle in his lane of traffic about 30 to 40 feet ahead, which later proved to be the respondent and his wagon. To avoid a head-on collision with the oncoming car he caught the left-hand wheel of the wagon with his right fender and almost simultaneously struck one of the handles of the implement on the wagon, tipping the wagon over and throwing-respondent out on the ground.

There was considerable evidence given by witnesses for both parties as to the exact time of day or evening the accident happened, varying from about 5:10 P. M. to as late as a few minutes before 6 P. M. It was stipulated by counsel that the sun had set at 5:04 P. M. on the day in question.

Appellant denied the allegation of negligence and alleged contributory negligence on the part of respondent. The trial was had without a jury and the court rendered judgment for $1368 in favor of the respondent. A motion for new trial was denied and defendant appealed from the judgment.