Smith v. Cantlay & Tanzola, Inc.

GRIFFIN, J. Action for damages for injury from collision of an automobile and a tank truck with trailer. Plaintiff Smith and his fellow serviceman, Walton, were stationed near Barstow. About 7:30 a. m. on May 8, 1945, they secured a ride from San Bernardino with Lieutenant Dillon, who was driving his automobile from that city to Victorville on Highway 66, which highway runs in a general easterly and westerly direction. Near the Cajon Pass the Dillon car ran into the tank truck and trailer which had been proceeding towards San Bernardino. This truck was owned by defendant corporation and was being driven by its driver, defendant Mar-cum.

Marcum testified that he left Barstow for San Bernardino in the early morning of May 8, 1945; that it was a very foggy morning and visibility varied between 10 and 75 feet; that he was following another truck or trailer driven by one Hasha; that as he reached the summit, where there was a cafe, he discovered that two other trucks with trailers were parked [691]on the north side of the highway; that there was no additional room for him to park so he pulled his truck and trailer south across the highway and parked off of and parallel with it and about 10 feet to the south thereof in a space in front of the cafe; that he went in and ate and waited for the fog to rise; that there was no improvement in that condition; that he left the cafe with Hasha, got into his truck, turned on the lights, sounded his horn, placed his truck in low gear and “took off”; that he pulled across the highway to the north at a 45 degree angle; that at about the time the truck reached the center line of the highway he stopped his truck because he heard, but did not see, a car coming from his left traveling toward Victorville; that he could not form any estimate of its speed but believed the motor was being accelerated.

The east-bound car' in which plaintiff was riding struck defendant’s truck near its left front wheel. Plaintiff’s head was thrown through the windshield of the Dillon car and there were multiple injuries to plaintiff, the most serious of which was a permanent foot and knee fracture.

Plaintiff testified that both headlights and fog lights were burning on the Dillon car; that it was proceeding about 2 or 3 feet south of the center lane and about 20 to 25 miles per hour; that the weather was cold and the windows were up; that the windshield wipers were working; that suddenly plaintiff saw headlights directly in front of him “pointed off at sort of an angle” and about 50 feet away in the lane of traffic occupied by the Dillon car; that no warning sound had been heard; that plaintiff immediately “hollered” to Dillon “look out”; that immediately the brakes were applied and he felt the car making a slight swerve. This evidence was corroborated by Mr. Walton, the other passenger in the Dillon car. Dillon was not present to testify.