Borror v. Berry

McCOMB, J. From a judgment in favor of plaintiffs (cross-defendants) after trial' before the court without a jury in an action to recover damages received in an automobile accident, defendant (cross-complainant) appeals.

The evidence being viewed in the light most favorable to plaintiffs, the essential facts are:

March 30, 1939, plaintiff Cecil Borror, while traveling south on Sepulveda Boulevard, noted that one of his cylinders was “missing.” He therefore pulled his car off the highway and parked six or eight inches west of the westerly pavement line of the boulevard. His co-plaintiffs were riding in a truck just behind him. They likewise stopped and parked off the highway. A few minutes later defendant, while driving his automobile at a speed of from 35 to 40 miles per hour in a southerly direction on the same boulevard struck the parked truck in which plaintiffs Floyd Borror and Edward Miller had been riding, causing the truck to strike plaintiff Cecil Borror’s parked automobile, as a result of which the plaintiffs received personal injuries and the truck was damaged.

Defendant filed a cross-complaint against plaintiffs seeking damages as a result of the injuries which he received in the accident.

It is necessary for us to determine three questions, which will be stated and answered hereunder seriatim.

First: Is there substantial evidence to sustain the trial court’s findings that:

(a) Plaintiffs’ automobiles were not parked upon the highway at the time of the accident, and

{b) Plaintiffs were not contributorily negligent.

This question must be answered in the affirmative.

(a) The defendant concedes that each of the plaintiffs testified that their cars were parked “clear off the pavement.” This testimony was substantial evidence to sustain the trial court’s finding that plaintiffs’ automobiles were not parked upon the highway at the time of the accident in question.

(b) Since the evidence discloses that there was substantial evidence to sustain the trial court’s finding that plaintiffs’ automobiles were not parked upon the highway when the accident occurred, section 582 of the Vehicle Code was not applicable to the facts of the instant case and it was, therefore, a question of fact for the trial court to determine from all of the evidence whether plaintiffs were contribu[554]