Adams v. Schmoker

BARNARD, P. J. This action arose out of a collision between an automobile driven by the plaintiff and another car owned by the defendants and driven by Mrs. Schmoker. A jury returned a verdict in favor of the defendants and the plaintiff has appealed from the judgment.

The collision occurred at the intersection of two country roads. Mrs. Schmoker was driving north on one road with the intention of making a right-hand turn and proceeding easterly on the other road. As she reached the intersection she stopped, looked both ways and, putting her car in low gear, entered the intersection and proceeded to make a right-hand turn. As she entered the intersection and was making this turn the Adams car was approaching the intersection from the west. Adams testified that he saw the other car as it approached the intersection; that he was 100 to 150 feet away from the intersection or "some place like that” when the other car stopped; that he turned his attention to anpther car which was coming toward him ; that he did ppt [721]again see the Schmoker car until he was “alongside” it; and that he then could not see the front of that car but “could only see the body of it by looking across my car out the right-hand window.” The right rear fender of the Adams car caught the left end of the front bumper of the Schmoker car, breaking off the left half of that bumper. The Adams car rolled over and landed in a ditch some sixty feet away, while the Schmoker car stopped practically where the collision occurred, the tire marks indicating that its front wheels had skidded five inches to the right. All witnesses agree that the Schmoker car was moving very slowly at the time of the accident; that it was upon the southerly half of the road upon which it was turning or had turned; that the Adams car was traveling about forty-five miles an hour through the intersection; that the Schmoker car remained practically at the point of impact; that Mrs. Schmoker did not see the Adams car; and that the Schmoker ear had either completed or almost completed the right-hand turn at the time of the impact. It also appears from the testimony of all eyewitnesses except Adams that there was no other vehicle near enough to this intersection to have had any effect upon the accident, and that he had ample room to pass to his left of the Schmoker car.

The appellant makes no contention that the evidence, if believed, is not sufficient to sustain the verdict, but it is argued that the testimony of Mrs. Schmoker and her son, who was riding with her, is so incredible that it must be disregarded. It is argued that it is incredible that the Adams ear could have come up behind the other car after it had completed its turn and, in passing that car, have missed its rear end but cut in and hooked its front bumper. While a part of the respondents’ evidence indicated that their car had completed its turn, a large part of that evidence was to the effect that that car was being turned at the time in question and that the turn had almost but not quite been completed. Under such circumstances,' it is not inherently unreasonable or incredible that the left front bumper of a turning car should be caught by the right rear fender of another car which passed too close or which cut in too soon. It is also argued that the mere hooking of this bumper by the appellant’s right rear fender could not have had the effect of causing the appellant’s ear to swerve, bounce and roll over. This involves many factors, including the speed of the Adams