Johnson v. Warner

WOOD (Parker), J. Plaintiffs, husband and wife, filed separate actions for damages allegedly sustained as the result of a collision between their automobile and an automobile owned by defendant John P. Warner, and operated by defendant Joanne Marie Warner, a minor. Defendants filed answers in which they denied negligence and alleged, as an affirmative defense, that plaintiff Elmore M. Johnson, who was operating plaintiffs’ automobile at the time of the collision, was guilty of contributory negligence. The actions were consolidated for trial. The court found, among other things, that defendant Joanne Marie Warner and the plaintiff Elmore M. Johnson were negligent and that the accident proximately resulted from the negligence of each of said persons. Judgment was for defendants and plaintiffs appeal therefrom.

Appellants contend in effect that the evidence does not support the finding of contributory negligence. Respondents concede that the evidence supports the finding of negligence on the part of Joanne Marie Warner.

The accident occurred about 5:30 p. m. on January 28, 1950, at the intersection of Oxnard and Colfax Avenues in North Hollywood. Oxnard Avenue extends east and west, and Colfax extends north and south. There were boulevard stop signs requiring traffic on Colfax to stop before entering the intersection. There were no boulevard stop signs requiring traffic on Oxnard to stop before entering the intersection. Plaintiffs’ automobile was traveling south on Colfax in the inside lane for southbound traffic. The Warner automobile was traveling east on Oxnard in the inside lane for eastbound traffic.

Plaintiff Elmore M. Johnson, hereinafter referred to as plaintiff, testified it was getting dark, there was a misty rain and the streets were wet; the lights of his automobile were on, and the windshield wipers were operating; he made a boulevard stop before he entered the intersection and shifted into low gear; he saw an automobile proceeding northerly on Colfax about 100 feet south of Oxnard; he looked to the east and saw no automobile; he then looked to the west and saw one automobile (Warner’s) at a point about 300 feet west of the intersection; the lights of the automobile were on and it was proceeding toward the intersection at a speed [600]of 30 to 35 miles an hour; plaintiff then proceeded to cross the street; he didn’t turn and keep his eyes on the automobile but it was coming toward him; he glanced at the automobile and it was increasing its speed—it was coming at a terrific rate of speed; at this time plaintiff was getting right up to the center of the intersection; plaintiffs’ automobile was still in low gear and was traveling about 18 miles an hour; plaintiff pushed the accelerator to the floor board, and the next thing he knew the accident happened; at the time of impact, plaintiffs ’ automobile had crossed the center line of Oxnard and lacked about 3% feet of being across the traffic lane in which the Warner automobile was traveling;. plaintiff did not sound his horn, swerve right or left, or apply his brakes prior to the accident; when the Warner automobile was about 30 feet from plaintiffs’ automobile, plaintiff Mrs. Johnson exclaimed that the car was going to hit them; he was already looking at the Warner automobile at that time, and he was doing his best to get out of the way; he did not attempt to stop because, in his estimation, it would have been more dangerous to try to stop than to try to get across, and he thought he could get across. He testified further that the impact caused the rear of plaintiffs’ automobile to swing about so that it was turned around; it then traveled about 45 feet south on Colfax where the rear of the automobile struck the front of a third automobile, a Chevrolet, which was traveling north on Colfax.