Scannell v. Schmidt

GRIFFIN, J. Plaintiff and respondent brought this action for damages for personal injuries and property damage claimed to have been sustained by him arising out of an automobile collision with defendants’ and appellants’ automobile, [20]about noon on January 24, 1952, on Highway 101, about 2 miles south of Carlsbad. Negligence of defendants was denied and contributory negligence of plaintiff was alleged. A jury returned a verdict in favor of defendants, who have appealed from an order of the trial court granting a new trial bn the grounds of insufficiency of the evidence to justify the verdict.

The roadway at the point of collision consisted of three lanes of asphalt sheet paving, each approximately 10 feet wide, divided by broken white center lines, together with a shoulder on each side of the highway. The entire roadway was practically level. Farther south toward San Diego the roadway was a four-lane divided highway. Plaintiff was traveling north from San Diego. Defendant Schmidt, Jr., was driving south in a Cadillac which belonged to his defendant wife and was being driven with her permission and consent. Both drivers were alone in their respective cars and no independent eyewitnesses testified at the trial. Shortly after leaving Carlsbad, defendant came upon a large truck and trailer which was proceeding south toward San Diego in the southbound lane, as was defendant. According to defendant’s testimony, he started pulling out from behind the truck and could then see a considerable distance down the highway. He stated that about the time he pulled out into the center lane to pass the truck he saw plaintiff pull out into the center lane, and a car was in front of and to the right of plaintiff’s car proceeding northerly in the east lane; that he, defendant, thought the distance between them was safe enough for him to overtake and pass the truck and trailer; that he proceeded to a point even with the cab of the truck at about 50-55 miles per hour while the truck was proceeding at about 45 miles per hour; that at that point he sensed danger and “gunned” his car in an effort to pass the truck, but was unable to do so, so he applied his brakes and veered to his left into the northbound lane because it was impossible for him to turn to his right on account of the presence of the truck in the right lane, and because plaintiff was approaching in the center lane “dead ahead of me.” He said he turned to his left to avoid a collision. It appears .that plaintiff turned his car to his right and into the right northbound lane about the same time, and the two ears collided in that lane. Defendant estimated plaintiff’s speed at 45 miles per hour.