Mize v. Davy

BARNARD, P. J. This is an action for damages arising from the collision of an Oldsmobile with a taxicab owned by the defendant Davy and driven by the defendant Jeske. The Oldsmobile was owned by the plaintiff Mize and was driven by the plaintiff Mason, who was about 18 years old. The other minor plaintiffs were passengers in that car.

The accident happened near the junction of Tulare Street and Bernard Street in the city of Bakersfield. Bernard Street runs east and west and Tulare Street comes into it [609]from the north but ends there. At the time in question the Oldsmobile, which had been proceeding south on Tulare Street, turned to the west on Bernard Street and collided with the taxicab at a point some 25 or 30 feet west of the westerly line of Tulare Street. The taxicab was proceeding east on Bernard Street and at the time of the accident was well over on the north or wrong side of the street.

A jury’s verdict awarded $300 to Oscar Mize for damage to his automobile, $2,500 to Mason, $100 to Bichard Mize, $100 to Jack Mize and nothing to Odell Mize. Judgment was entered accordingly and the defendants have appealed.

Although it is admitted that the driver of the taxicab was negligent in being on the wrong side of the street it is argued that the sole cause of the accident was the negligence of Mason, the driver of the other car, and that, in any event, it conclusively appears that he was guilty of contributory negligence. That the driver of the taxicab was guilty of negligence appears beyond question. It appears from the testimony of three witnesses that as the Oldsmobile approached Bernard Street Mason slowed down to five or ten miles an hour, looked both ways, changed to second gear, and turned west on Bernard Street well to the north of the center line of that street. These witnesses testified that just after this turn was made and when they had proceeded about 25 feet on Bernard Street the taxicab suddenly came from behind a Ford car, which was approaching from the west on Bernard Street and which was then almost opposite the Oldsmobile, and that the taxicab thus suddenly appeared in front of the Oldsmobile, causing the head-on collision which occurred. The driver of the taxicab, while admitting that he was on the wrong side of the street, testified that he passed another ear some 300 feet west of the point of collision and that he had not yet returned to his own side of the street when the accident happened. While there is some conflict as to how long the taxicab had been driven on the wrong side of the street there is none on the fact that it was on the wrong side of the street, and there is nothing to support the contention that the sole cause of the accident was negligence on the part of the driver of the Oldsmobile.