Temple v. De Mirjian

WOOD (W. J.), J. Plaintiff commenced this action to recover damages for the wrongful death of her son resulting from a collision of two trucks. A jury returned a verdict in plaintiff’s favor in the sum of $9,500. From the ensuing judgment defendants have appealed.

The collision occurred on March 5, 1940, between 4 and 5 o ’clock a. m. on Garvey road, a paved, four lane highway in the county of Los Angeles. Plaintiff’s son was driving a truck owned by Armour & Company in an easterly direction on the south side of the highway and defendant Busick was driving a truck owned by defendant De Mirjian in a westerly direction. The collision took place at a point which was south of the center line of the highway, near the most southerly traffic lane. As a result of the head-on • collision both trucks were severely damaged by the force of the impact, as well as by the ensuing fire which enveloped them. Plaintiff’s son was pinned in the cab of the truck and was burned to death.

At the time of the collision defendant Busick was driving on the left, the wrong side of the highway, and therefore was presumptively negligent. (Jolley v. Clemens, 28 Cal. App. (2d) 55 [82 P. (2d) 51].) In an effort to rebut the presumption of negligence, defendant Busick testified that shortly before the accident, while he was driving on the right side of [562]the highway, the truck began to “wander” toward the middle of the road; that when he attempted to control its direction he discovered that the steering apparatus was not functioning and therefore he was unable to control the direction which the truck traveled. Although aware of the approach of the truck driven by the deceased, defendant Busick did not immediately apply his brakes upon discovering that his truck was out of control because he was afraid that the front wheels would “jackknife” and thus catapult the truck. He did, however, apply his brakes prior to the accident but was unable to stop before he struck the other truck. Examination of defendant ’s truck following the accident disclosed that the steering mechanism was broken, the draglink being disconnected from the pitman-arm; the front wheels were cramped to the left as far as possible and the steering wheel was turned as far to the right as it would go. The break in the steering mechanism was at a point near the left front wheel. Defendants introduced evidence to the effect that the draglink could have been forced from the pitman-arm prior to the accident by a rock or other hard substance becoming lodged between the frame and the steering apparatus. However, no rock or other hard substance was found at the scene of the accident. Relying upon such evidence defendants contend that the jury could lawfully have come to but one conclusion, namely, that the collision was the result of an unavoidable accident caused by the breaking of the steering gear prior to the accident.