Black v. Kiefer

BARNARD, P. J. This is an action for damages arising out of an automobile collision which occurred at 8 a. m. on Sunday, April 6, 1952, at the intersection of Kettner Boulevard and Cedar Street in San Diego. Kettner is a through street, protected by' stop signs at this intersection. The plaintiff Black, driving an automobile owned by the plaintiff Jacobs, was traveling south on Kettner in his proper lane and at a reasonable speed. The defendant was traveling west on Cedar, failed to stop at the stop sign, and the collision occurred at a point 27 feet west of the east curb line of Kettner and 15 feet south of the north curb line of Cedar. There was evidence that the view of these drivers was somewhat obstructed by a row of automobiles parked at the edge of a used car lot at the northeast comer of this intersection. However, the defendant testified that he “could see over these cars” when he was two or three car-lengths from the intersection, that Black’s car was then about 100 feet from his car, and that he thought he could cross ahead of Black.

The jury awarded the plaintiff Jacobs $352.42 for the damage to her car, and awarded the plaintiff Black $148.75. The court granted Black’s motion for a new trial on the issue of damages alone, on the ground that the damages awarded were inadequate. The defendant appealed from the judgment and from the order granting Black a limited new trial. Black also filed a notice of appeal from the judgment in his favor.

The defendant first contends that the court erred in submitting the issue of Black’s negligence to the jury. It is argued that Black’s own testimony shows that he was guilty of contributory negligence. This contention rests on the testimony of Black that as he approached this intersection he did not look to his left; that he was looking straight ahead; that if he had seen a moving object it would have caused him to look that way; that he did not see the defendant’s ear until the nose of his own car was already in the intersection ; and that he did nothing to avoid the collision because “it happened too fast.” The evidence was entirely insufficient to establish contributory negligence as a matter of law, and the factual issue was properly left to the jury.

The defendant next contends that the trial court improperly limited a new trial to the issue of damages. It is argued that the damages awarded to Black were less than his proved special damages; that this is a convincing indication that the verdict was the result of a compromise on the issue of lia[124]