Peneski v. Ledford

MUSSELL, J. Plaintiffs appeal from a judgment entered in favor of defendant in an action for damages for personal injuries received in an automobile accident. The collision occurred at the intersection of Hermosa and Anita Streets, public highways in the county of San Diego. Both streets are surfaced with oil and gravel and at the time of the accident there were no stop signs at the intersection and neither street was divided by a marked center line. Hermosa Street is 21 feet wide and extends north and south and Anita Street is 15 feet in width and runs east and west. The point of impact was established as approximately 3 feet south of the north edge of Anita Street and 12 feet west of the east curb line of Hermosa Street.

Plaintiffs were traveling south on Hermosa Street in a 1937 Chevrolet automobile, being driven by a Mr. Flaskerud, when the car struck the right rear fender of a 1946 Plymouth sedan then being driven by the defendant Earline Ledford [372]in a westerly direction across the intersection. Following the collision, the Ledford car skidded broadside, overturned and came to a rest off the highway approximately 100 feet west of the point of impact.

Mrs. Ledford testified that she first observed the Flaskerud automobile when it was about 75 feet from the intersection; that she was then approximately 40 feet from the intersection and proceeding west at an approximate speed of 25 miles per hour; that just as she entered the intersection, she observed the Flaskerud automobile approximately 30 feet north of the intersection; that during the time the Flaskerud car was in her vision, its speed was not reduced; that after entering the intersection and when she was about at the center of it, she saw that the Flaskerud car was coming too fast and that she then increased the speed of her car.

There was. evidence introduced that the Flaskerud car was being driven at a rate of speed of 40 miles per hour when approximately 100 feet from the intersection and that the driver (Mr. Flaskerud) admitted that he was traveling 30 miles per hour at the time of the collision.

The cause was tried by the court without a jury and the only contentions presented by the appellants are (1) That the findings of fact are contrary to and unsupported by the evidence; and (2) That the concurrent negligence of the defendant was conclusively shown by her own testimony. These contentions are untenable.

The general rule by which we must be governed is stated in Berniker v. Berniker, 30 Cal.2d 439, 444 [182 P.2d 557], as follows: