Fernholtz v. Bisbee

WHITE, J. This litigation is the outgrowth of an automobile accident which occurred about 8:20 o’clock on the morning of December 28, 1936, at a point about one and one-half miles south of Gorman on the “Ridge Route” highway between Los Angeles and Bakersfield. Plaintiff, Emil Fernholtz, who is the appellant herein, was riding as a guest in an automobile being driven by Fred Hughes, hereinafter referred to as the Hughes car, and which was traveling in a northerly direction. The highway at the point of collision was covered with ice, and shortly before reaching the point of impact the Hughes car in which appellant was riding skidded, and an automobile driven by the defendant and respondent, Roy A. Bisbee, hereinafter referred to as the Bisbee car, struck the Hughes car. Hughes, driver of the automobile in which appellant was riding, commenced an action to recover damages for personal injuries and property damage against the defendant and respondent Bisbee, which action was No. 416664 in the Superior Court of Los Angeles County. In this action defendant Bisbee filed an answer and also a cross-complaint seeking recovery for personal injuries and property damage sustained by him. Plaintiff and appellant in the instant action filed his complaint in the same court, No. 415691, against defendant and respondent herein, Roy A. Bisbee, but did not name Hughes, the driver of the car in which appellant was riding, as a defendant.

Upon motion of defendant and cross-complainant Bisbee, and over objection of plaintiff and appellant herein, these actions were consolidated for trial by order of the superior court. Upon the trial of the cases so consolidated before a jury, three verdicts were returned: (1) In the case now before ns a verdict was rendered in favor of defendant and respondent Bisbee and against plaintiff and appellant Fernholtz; (2) in the other action a verdict also was returned in favor of defendant Bisbee and against plaintiff Hughes on the complaint of the latter; while (3) on the cross-complaint therein of defendant Bisbee against plaintiff Hughes, the verdict was in favor of the cross-defendant Hughes and against the crosscomplainant Bisbee.

There was no conflict in the evidence as to the icy, slippery and dangerous condition of the highway at the point of the [581]accident, nor was there any evidence of excessive speed by either automobile, but there was a sharp conflict as to the point on or lane of the highway where the accident occurred. Plaintiff contended that when the Hughes car started to skid it came to a complete stop in the center lane of the highway, and that there was sufficient room in the third lane for the Bisbee ear to pass the Hughes car in safety without moving over on to the center lane. Defendant Bisbee presented evidence that when he came upon the slippery road he was traveling in second gear ■ that while so traveling, as he passed Gorman, he first saw the Hughes car when it was about a half mile away; that he was traveling upon the right hand side of the road in second gear upon an icy and slippery pavement, going between twenty and twenty-five miles per hour; that when he was about two or three car lengths from the Hughes car the latter skidded over on to the lane in which the Bisbee ear was traveling; that when the impact occurred the Hughes car was still in motion. Thus we see, as conceded by appellant, that the factual situation presents the usual conflict in the evidence attendant upon eases of this nature.