Cooper v. San Diego Electric Railway Co.

BARNARD, P. J. This is an action for damages arising from a collision between an automobile and a bus. The plaintiffs owned a house at the northeast corner of the intersection of Webster and Thirty-first Streets in San Diego. On the afternoon of June 15, 1945, an automobile driven by the defendant Chapman and a bus owned by the defendant corporation and driven by the defendant Tillery, collided in this intersection. The defendant Tillery was knocked to the floor of the bus, leaving it out of control, and the bus ran over the curb and through a wall of the plaintiffs’ house before it came to a stop.

This action was brought against these three defendants, the complaint alleging concurrent negligence on the part of the drivers of the two vehicles. All defendants filed general denials and the railway company and Tillery also alleged that the accident was caused by the sole negligence of Chapman. The railway company also filed a cross-complaint seeking to recover from Chapman, and the owner of the car he was driving, for the damage caused to the bus. The cross-defendants filed a general denial to the cross-complaint.

The court, sitting without a jury, found in favor of the plaintiffs awarding them a judgment against the defendants in the sum of $1,210.45, and also found in favor of the cross-defendants awarding nothing to the railway company. The railway company and Tillery have appealed from the portion of the judgment which was in favor of the plaintiffs, and the railway company has appealed from the part which was adverse to it on its cross-complaint.

With respect to the judgment on the original action the appellants first contend that the evidence is insufficient to support the finding of negligence on the part of the operator of the bus. It is argued that the evidence shows that the collision was caused solely by the negligence of the driver of the automobile. His negligence clearly appears as he testified that he entered this intersection at a speed of about 20 miles an hour, that he looked neither to his right nor to his left, and [306]that he did not see this bus until it was within 3 feet of him. However, there is also evidence which, with the reasonable inferences therefrom, is sufficient to sustain, the finding of negligence on the part of the operator of the bus. She testified that she first saw the automobile when the front end of her bus was 20 or 25 feet west of the intersection and when the automobile was from 100 to 125 feet south of .the intersection; that she next s.aw the automobile when she was slightly more than half-way through the intersection, when she saw the automobile coming on into the intersection at a terrific speed; that when she saw it the second time the automobile was coming at 40 to 45 miles an hour.;' that when she saw it the first time “he wasn’t going quite that fast”; and that “I had seen it coming on down but I didn’t seem to realize that he was coming so fast until he got right—it seemed to me he picked up speed, when he got to the corner there. He never slowed up any at all.” ..