Levy v. Martin

FOX, J. This is an appeal by the plaintiffs from a judgment in favor of defendant after a jury trial.

Viewing the evidence as we must on appeal in the light most favorable to the successful party in the trial court, the facts and circumstances surrounding this automobile collision are as follows: The plaintiffs, husband and wife and two adult children, were traveling north in the family car. The defendant, who was alone, was also driving northward. His car collided with the rear of plaintiffs’ vehicle causing injury to the plaintiffs. Their car was in the traffic lane nearest the right-hand side of the highway and was stopped at the time of impact. The accident occurred on the Bay Shore Highway at a point approximately 9 miles south of the city limits of San Francisco and about one half mile north of the intersection of said highway and the South San Francisco cutoff. It was getting dusk and both machines had their lights on. The weather was fair. Between the cutoff and the place where the accident happened there is a “compound” curve, i.e., first a gradual curve to the right and then a reverse turn to the left; also, the highway is upgrade, mating a ridge over which one cannot see until he reaches approximately the crest. As defendant was traveling around the curve on the inside lane of traffic at about 50 miles an hour with nothing in front of him that he saw —“no lights at all”—a Greyhound bus signalled to pass him. When he completed the curve he pulled over to the outside traffic lane at approximately the top of the grade to permit the bus to pass. Defendant then saw the taillights of plaintiffs’ car approximately 250 feet away. He traveled some 50 feet before he realized plaintiffs’ car had stopped. He then immediately applied his brakes and left 63 feet of skid marks to the point of impact. The roadway here was downgrade. He could not pass to the right of plaintiffs’ car because the shoulder was gravel and there was a guardrail and a drop of several feet to a railroad track. He could not pass on the left because he was abreast of the Greyhound bus which was passing him. There was no northbound traffic ahead of plaintiffs that defendant could see but the southbound [732]traffic was heavy. The speed limit over this highway was 55 miles an hour.

Plaintiffs contend defendant was guilty of negligence as a matter of law because (1) he negligently failed to reduce the speed of his car while his vision was restricted either by curves or the crest of a hill, and (2) that he either negligently failed to see that which he should have seen, when he achieved the crest of the hill, or (3) having seen what he should have seen he negligently failed to apply his brakes.