Jackson v. Butler

BARNARD, P. J. This is an action for damages arising out of a collision between an automobile driven by the plaintiff and a truck owned by the defendants Ralph De Palma and Charles De Palma, and driven by the defendant Butler. The collision occurred at 7:30 p. m. on February 15, 1946, on Highway 99, about 2 miles east of Banning. This was a divided highway with two lanes for traffic in each direction. The plaintiff was going west at a speed of 40 miles an hour at a point where there is a long wide curve in the road when he collided with the defendants’ truck which was, or had been, also proceeding west. While the plaintiff could see the taillights on other ears for half a mile ahead, he did not see this truck which was in the middle of the right-hand lane, in which he was traveling.

At the trial the action was dismissed as to the defendant Butler, who was not served and was not present, and also dismissed as to the defendant Louis De Palma, who was shown to have no interest in the truck. A jury brought in a verdict for $5,886.50, which was reduced by the court in denying a new trial, to $4,101.50. The defendants Ralph De Palma and Charles De Palma have appealed from the judgment, with an attempted appeal from the order denying a new trial.

It is first contended that the evidence is insufficient to justify the verdict. It is argued that there is no evidence to show any negligence on the part of the defendants; that the plaintiff should have seen the truck since his lights were on all of the time; that there is no evidence that the driver of the truck was negligent or that he was parked in the roadway; and that if it could be assumed that no taillight on the truck was burning, there was no evidence that the driver was aware of any such condition.

[611]While there was evidence on behalf of the defendants that this truck was equipped with a taillight and a red reflector there is ample evidence to the contrary. The plaintiff testified that while he saw taillights on other cars ahead of him he saw none on the truck, and did not see the truck itself until he ran into it. A traffic officer, who arrived at the scene a few minutes after the accident occurred, testified that shortly before the accident, while he was chasing a speeder, he passed this truck and could see no taillight; that while he was giving a ticket to the speeder this truck passed him and he could see no taillight; that as soon as he could he followed the truck with the intention of stopping the driver; that when he reached the scene of the accident he examined the truck; that it did not have a taillight or a reflector; that there was a “taillight sill” on the truck but no taillight; and that he looked for but could not find any red glass in the vicinity of the accident. The garageman who towed the truck away testified that he swept the broken glass from the pavement but saw no red glass, and that he then remarked to the traffic officer that he had better put his own red lights on the back of the truck when he towed it in “because there was no light on the back.” Nothing more than a conflict appears and the evidence is ample to support the finding of negligence.