Hetherington v. Crossley Transportation Co.

SHINN, Acting P. J. On the 26th day of September, 1944, at about 5:45 a.m., at a point on U. S. Highway 60, some 13 [723]miles east of the city of Riverside, a Hudson car belonging to appellant, Mary Hetherington, and being operated by her husband, Dr. Albert J. Hetherington, in an easterly direction, collided with a Ford car being driven by one James Keesheen in a westerly direction, the left front portions of the two cars coming into contact. The highway was 28 feet wide, divided by a white line, with shoulders at least 10 feet wide. There was testimony that the Hetherington car came to rest across this line and extended in a southeasterly direction over most of the south half of the paved highway. The Keesheen car came to rest on the north side of the highway facing in a northwesterly direction. The distance between the two cars was estimated at from 5 to 10 feet. A few minutes thereafter, while plaintiffs were still in their ear, a truck and trailer of Crossley Transportation Company, driven by its employee, Karber, traveling in an easterly direction, collided with both cars, continued for a considerable distance down and off the highway, where the truck tipped over, caught fire and was demolished. Hetherington and wife sued the Crossley company and Karber for damages and these defendants, in a jury trial, recovered judgment on their cross-complaint against Hetherington and wife. The Hetheringtons appeal.

The questions on appeal are whether there was sufficient evidence that Dr. Hetherington was negligent and whether respondents were guilty of contributory negligence as a matter of law.

Dr. Hetherington testified that his headlights were on and that he saw the approaching Keesheen car when it was about a mile away weaving back and forth across the middle white line; that pretty soon it got onto the south side of the highway and came on toward him; that when the car was nearly upon him, 25 or 50 feet away, on the south half of the highway, he turned his ear to the left so that it extended about a foot over the middle line into the north half of the street where his left front fender came in contact with the left front fender of the Keesheen car. The lights of both cars were extinguished by the first accident. Respondent Karber testified that the equipment he was driving was some 60 feet in length, was loaded with fuel oil and weighed approximately 67,000 pounds; that he had been traveling within a mile or so of 40 miles an hour; that his right front bumper hit the Hudson car; that about 250 or 300 feet west of the point of impact he came into a fog bank and in doing so slowed down