Escobar v. McNiel

STEEL, J. pro tem. The defendants appeal from a judgment entered in favor of plaintiffs pursuant to the verdict of a jury. The sole error assigned in this appeal is whether or not the plaintiffs were guilty of contributory negligence as a matter of law. The essential facts are without dispute and may be summarized as follows:

The action is one for damages alleged to have been sustained by plaintiffs as a result of an accident which occurred on a Sunday afternoon in November, 1939, on U. S. Highway 50, approximately four and one-half miles west of Plaeerville, in El Dorado county.

The appellant Mary McNiel, accompanied by her husband George P. McNiel (since deceased) was riding in their Chrysler automobile, and at the time of the accident it was being driven by appellant Owen Daniel Brown, westerly along said highway.

The plaintiffs, respondents here, minor high school boys of the ages of 17 and 16 respectively, were pedestrians and on their way home at the time of the accident. As they approached the highway from a side road they observed some friends passing in a car traveling westerly which the boys signaled for a ride. Respondents were then approximately 250 feet from the highway, and the car, hereinafter referred to as the Smith car, did not stop at once but proceeded along the highway some 380 feet to a point about midway in a cut where it was brought to a stop partly on and partly off the paved portion of the highway. The respondents, upon reaching the highway from the side road, looked for oncoming traffic, and seeing none, proceeded directly across the highway [124]to the northerly side and then walked and ran westerly along the north shoulder toward the Smith car. As they approached the car from the rear they went to the left side thereof and had just engaged in a conversation with some of the occupants when the defendant’s car, traveling westerly also, approached and struck them, hurling them forward and to the ground in front of the parked Smith car, resulting in the injuries sustained.

Upon the trial, plaintiffs’ witness, a civil engineer, produced a profile map which was received in evidence showing the physical condition of the highway in the vicinity of the scene of the accident.

As already indicated the accident occurred about midway in a cut with sloping embankments, the length of which was some 600 feet or more. The width of the paved portion of the highway through the cut is 22.4 feet with a white center line, and has a shoulder on either side from five to six feet in width. As a car approaches from the east, that is the Plaeerville direction, the highway descends somewhat, and at a point some 2,000 feet east of the accident it would disappear from the view of one at the scene of the accident, and after reaching the bottom of the dip or grade it gradually ascends, and at a point some 1,050 feet east of the accident scene it would again come into view, from that point on the grade flattens out almost to level, giving one a clear and unobstructed view for the entire distance last mentioned.