Woods v. Walker

SPENCE, J. This is an appeal by defendant Eugene Walker and defendant Kenneth Lee, his employee, from an order of the trial court denying their motion for judgment notwithstanding the verdict.

Plaintiff sought damages for personal injuries sustained in an automobile accident. The jury returned a verdict in favor of plaintiff and against said defendants in the sum of $5,200. Said defendants had previously made a motion for a directed verdict which was denied and, following the verdict, they made a motion for judgment nothwithstanding the verdict which was likewise denied. In support of said motions, said defendants contended that the evidence was insufficient to show negligence on the part of the defendants and that the evidence affirmatively showed that plaintiff was chargeable with contributory negligence as a matter of law. The same contentions are presented on this appeal.

The accident occurred on the transcontinental highway known as U. S. Highway No. 40. Plaintiff was driving a Dodge truck in a general westerly direction along said highway at about 11 p. m. on the night of July 11, 1939, proceeding from Truckee toward Auburn. The collision took place at a point about one-half mile west of the Pioneer Garage, at which point plaintiflj’s truck collided with the truck of defendants which was admittedly parked without lights at least partially on the paved portion of the highway.

The photographs in evidence clearly show the nature of [309]the highway and the adjacent terrain near the point of collision. Said photographs show a straight portion of a typical mountain highway running through a long but shallow cut with banks gradually sloping upward from the sides to a height of about 15 feet. The main traveled portion of the highway is well paved with a white line running down the center thereof. The testimony shows that each side of the paved portion of the highway is 11 feet 8 inches in width. On either side of the paved portion is a shoulder of small rock and dirt which slopes very gradually downward to a small ditch or drain, approximately 6 inches in depth, at the foot of the sloping bank. The distance from the edge of the paved portion of the highway to the bank is 6 feet 4 inches.

The testimony offered by defendants shows that defendant Lee had been operating a Ford truck, loaded with beehives, in a general westerly direction on said highway when the lights of said truck went out. Said defendant stopped said truck but there is some conflict in the evidence as to the exact position at which said truck was brought to a stop. Said defendant conceded that there was “about a foot and a half” of the truck on the paved portion of the highway, stating that he did not drive further off the paved portion as “there is a little ditch there.” There is other evidence, however, tending to show that defendants’ truck was entirely or practically entirely on the paved portion of the highway and that it would have been practicable to have driven said truck to a position where it would have been entirely off the paved portion of the highway.