Neff v. County of Kern

GRIFFIN, J. This action was instituted by plaintiffs and appellants to recover damages for death and personal injuries arising out of a collision between a truck and a motorcycle. The collision occurred on February 9, 1940, about 3:30 p. m. at the intersection of Haley and Pacific Streets in Bakersfield. Haley Street runs north and south. Pacific Street runs east and west. The defendant and respondent Armand Rambaud was driving an International dump truck, owned by the defendant and respondent county of Kern, in a southerly direction on Haley Street. The deceased, William Neff, and the plaintiff and appellant Ralph Eckhardt, a minor, were riding a motorcycle east on Pacific Street. The dump truck was operated by Rambaud as the agent of the respondent county of Kern, in the course and scope of his employment, and was at the time hauling a load of sand weighing approximately four tons. The southwest corner of Pacific and Haley Streets was obscured by shrubbery and trees so that it constituted a blind corner. At the time of the collision respondent Rambaud was operating the dump truck in third gear at a rate of speed between 8 and 12 miles an hour and had been doing so for about 300 feet before entering the intersection of Haley and Pacific Streets. As Rambaud entered the intersection he looked west and observed the motorcycle, then approximately 200 feet away from his vehicle, traveling at a speed he estimated between 35 and 40 miles an hour. He then looked to his left, or east, and thereafter looked again to his right, or west, as he crossed the center of Pacific Street. He then observed the motorcycle and its two occupants about 10 to 15 feet from the intersection going at about the same rate of speed and with the riders looking back over their right shoulders. Rambaud turned his truck slightly to his left. The impact occurred immediately upon his seeing the motorcycle the second time. The point of impact was near the right front bumper and fender of the truck at a point when the truck was about 37 feet and the motorcycle was about 22 feet into the intersection. After the impact, Rambaud applied the brakes on his truck and brought it to a stop. William Neff, the deceased, age 19, and Ralph Eckhardt, age 18, were riding upon a one-seated 1929 Indian motorcycle. Both were occupying the one seat with Neff sitting in front of Eckhardt. Both had their feet upon the floorboard and each was instrumental in balancing and controlling the motor[88]cycle. Three girls were walking west on the southerly side of Pacific Street at a point approximately halfway between the first house and the fence west of Haley Street. As the two boys on the motorcycle passed the three girls they were looking at them and continued to look at the girls over their right shoulders until the motorcycle was about to enter the intersection. The motorcycle was traveling approximately 40 miles per hour when it passed the girls and continued at the same speed up until the time of the collision. The side windows in the cab of the truck were down. After the truck had come to rest following the collision the windows were rolled up and the truck locked by Rambaud. Ram-baud testified that the windshield and the glass in the right side door were clean. The only other testimony about the condition of the windshield and door glass was that of officer Bianchi, who testified that the windshield and glass “was fairly clean”; that there was a little dirt upon the windshield; that it was not as clean as it would have been if it had just been cleaned off; that he could not say that there was enough dirt there to interfere in any degree with the vision; that he didn’t get into the cab to look out. The driver of the truck testified that the windshield and glass were clean; that the glass in the side door was rolled down and that his Vision was not impaired to any extent. One witness for plaintiff testified that on Monday and Tuesday the week before the accident he had driven the dump truck in question • that the brakes had been relined about 4 or 5 weeks before the accident; that if the brakes were applied lightly the brakes on the right front wheel would grab before the others caught and the truck would swerve to the right; that for a week before the accident it was necessary to hold the steering wheel to keep it from spinning “when the wheels cut to the right.” There was evidence that on February 16, after the accident, a similar test was made with the same result. Other witnesses were called on behalf of the defense who testified that minor adjustments had been made on the truck on Wednesday preceding the accident and that the brakes were “okay” when he was through working on them and that he made a similar test on Monday after the accident and they were still “okay.” After the jury was instructed it returned a unanimous verdict in favor of the defendants.