Hellman v. Maher

YORK, P. J. From a judgment awarding the minor plaintiff $1,500 for personal injuries sustained in an automobile collision, and awarding the parents of said minor $596.26 on account of medical care and attention for the minor and for repairs to their automobile, defendant prosecutes this appeal.

Appellant’s sole contention is that the trial court erred in denying her motion for a nonsuit, because respondent Bertha Hellman was guilty of contributory negligence as a matter of law.

It appears from the record herein that on the morning of May 17, 1944, respondent Bertha Hellman was driving a 1939 Buick sedan in a northerly direction on Gardner Street, in the city of Los Angeles, taking four children to school; that her son, respondent Bryce Hellman, was sitting beside her on the front seat, and her daughter was sitting in the rear with the other two children, who had just been picked up on Gardner Street less than a block from the scene of the collision, i. e., the intersection of Gardner Street and Rosewood Avenue.

Appellant was operating a 1934 Chevrolet and was traveling west on Rosewood. The impact between the left front fender of appellant’s car and the rear right fender of respondent’s automobile occurred at a point 6 feet south of the north curb line of Rosewood and 15 feet east of the west curb line of Gardner, both streets being 30 feet wide. As a result of the collision, respondent’s car skidded sidewise and turned over, coming to rest on the west side of Gardner about 60 feet north of the point of impact.

Respondent Bertha Hellman testified that when she first observed appellant’s car, it was “about half way down the street (block)”; that this was “after I got into the intersection,” to wit: when the back of her own car was south of the south line of Rosewood and the front end thereof was within the intersection; that said witness was going about 15 miles an hour, and when she saw appellant’s car, she “stepped on the gas” and went straight ahead. This witness also testified that when the collision occurred “most of” her car had crossed the north curb line of Rosewood; that her car “rocked back and forth from the left to the right and then it turned completely around and the engine of the car faced south; and it turned over on its left side against the curbing,” [597]finally coming to rest “in front of the second house from the corner. ’ ’

Appellant testified that she was approximately 22 feet east of the intersection when she first saw respondents’ car which was then about on a line with the extension of the southerly curb line of Rosewood, “before it got right to the intersection.” Also, that at the time of the impact, part of respondents’ car was “definitely in Rosewood Avenue.’’ To the following question propounded by the trial judge; “You mean at the point of impact part of it was in the intersection and part of it was beyond the north boundary line of Rosewood?,” this witness replied: “Yes, that is my recollection, yes.”