Paulsen v. Spencer

BARNARD, P. J. This is an action for damages for the death of Ray Lester Paulsen. The jury brought in a verdict in favor of the defendant and the plaintiffs have appealed from the judgment.

The accident occurred at about 1:30 a. m. on November 25, 1945, on Highway 99 at a point about eleven miles south of Gorman. On that night the respondent was driving a 1942 DeSoto automobile north on this highway, traveling in the easterly of the three traffic lanes. When he reached the point in question his engine stopped and he was unable to start it. At this point the highway was upgrade and was straight for something like half a mile. After his engine stalled the respondent allowed his ear to coast backward and to the south, along the east lane, to a point where the highway had been cut through a hillock. There is evidence that he backed his car up against the side hill in this cut, and parked it on the easterly shoulder. The shoulder was six feet wide at that point and his car was six feet wide. He testified that the wheels of his car were entirely off the pavement but that the fenders may have overhung the easterly edge of the pavement. He put on his brake, turned off his lights and locked the doors of the car. He then caught a ride in a passing car going north. In the meantime, some four to six cars going north passed without stopping. The respondent was unable to get help at Gorman and Lebec, the garages being closed, but finally secured help at the Grapevine garage and returned to his parked car, having been gone something over an hour.

In the meantime two traffic officers in a state car, traveling north in the easterly traffic lane, at 35 or 40 miles an hour, passed the parked car and then backed up to investigate. One of the officers testified that they noticed a car parked on the east shoulder “parked against the bank” and that they stopped to investigate. The other officer, who was driving, testified “I had passed the car before I realized it was something that should be looked after,” and that they then checked by radio to see whether or not the ear had been stolen. These officers testified that while they made no measurements they [270]thought the rear left tire on the parked car was from six inches to a foot on the pavement. While the officers had flares with them they did not put them out. The officers then drove north to Gorman and inquired as to' the owner of the parked car. Receiving no information they then drove south.

When they again reached the point where the car had been parked they found that there had been an accident. The parked car was still on the easterly shoulder but about 16 feet 9 inches north of where it had been. Its left rear fender was completely knocked off, its bumper was hanging down, and there was considerable damage to the left part of the rear end and the left side of that car. There were gouge marks on the east edge of the pavement 16 feet 9 inches south of where the parked ear then stood, and from those gouge marks dual tire marks ran northerly in a zigzag manner, and passing over all three lanes of the pavement, for a distance of 206 feet before they left the pavement on the easterly side. Prom that point they ran northerly about 100 feet along the easterly shoulder and into a canyon, some 60 feet deep. There was found a GMC, tractor truck, the kind which is used to pull a semi-trailer although no semi-trailer was attached. Underneath this truck Paulsen was found dead. He had left home with this tractor truck on the previous morning. There was evidence that this tractor truck was eight feet wide. Pictures of respondent’s car after the collision and of the marks left on the pavement by the truck, which were taken that night and the next morning, were introduced in evidence.