Wilson v. Gurney

SCHOTTKY, J. Plaintiffs commenced an action to recover for personal injuries and property damage resulting from a collision between a Lincoln two-door sedan and a dump truck loaded with gravel. Plaintiff Wilson was the driver of the Lincoln automobile, and the other plaintiffs were guests in the car. The dump truck was being driven by defendant Gurney, its owner. Defendant Gurney filed an answer denying the material allegations of the complaint, and also filed a cross-complaint for damage to his truck, but said cross-complaint was dismissed by him during the trial. The action was dismissed also as to the fictitious defendants.

The ease was tried by the court sitting without a jury, and the court found that defendant was free from negligence-in the matter; that no act or omission on his part in any way caused the collision or any damage suffered by any of the plaintiffs; and that driver Wilson was negligent and that this negligence was the sole, direct and proximate cause of the accident. Judgment was entered in favor of defendant in accordance with said findings, and plaintiffs’ motion for a new trial was denied. Plaintiffs have appealed from the judgment and also from the order denying plaintiffs’ motion for a new trial. Since the order is not appealable (Code Civ. Proc., § 963; Pipoly v. Benson, 20 Cal.2d 366, 368 [125 P.2d 482, 147 A.L.R. 515]), plaintiffs’ appeal therefrom must be dismissed.

Appellants make the following contentions: (1) That the finding that respondent was not negligent in the matter is unsupported by the evidence; (2) that the finding that appellant F. E. Wilson (the driver of the Lincoln sedan) was negligent is likewise unsupported by the evidence; (3) that [891]the court erred in granting judgment in favor of respondent and against the other appellants who were guests in the Lincoln sedan; and (4) that the court erred in denying appellants’ motion to reopen the case. The first three contentions attack the sufficiency of the evidence, and before discussing them we shall give a brief summary of evidence, bearing in mind the familiar rule that all conflicts in the evidence must be resolved in favor of the prevailing party.

The accident occurred at about 9 :45 a. m. on the morning of July 5, 1950, at or near the intersection of United States Highway 101 and a public road known as Kent Street or Citizens Dock Road, just south of the city of Crescent City in Del Norte County. Highway 101 is a two-lane highway and runs in a northwesterly and southeasterly direction at this point. Kent Street intersects the highway from the westerly side, in a so-called “T” intersection. Both vehicles were proceeding in the same direction on Highway 101, approaching the intersection from the south. The highway is straight for a distance of approximately 1,800 feet south from the intersection. The weather was clear and the sun was shining. The collision occurred when respondent was making a left turn into Kent Street and driver Wilson was attempting to bring his ear to a stop after he had crossed over into the left lane in an effort to overtake and pass the truck.