Nemec v. Polley

MUSSELL, J. This is an action for damages to the “Barbara,” a boat owned by plaintiff Robert Nemec, and to a pier and float owned by plaintiff copartnership occasioned when the “Balboa,” a boat owned by the defendant Newport Bay Investment Company and operated by defendant Hal G. Polley ran? into and collided with the Barbara, then moored at the said pier and float on the south shore of Balboa Island, Newport Bay, Orange County.

The cause was tried by the court without a jury and judgment was rendered in favor of the individual plaintiff Robert Nemec in the sum of $3,058.21, in favor of the partnership Nemec Combustion Engineers in the sum of $335.32, and in favor of Robert Nemec and the partnership for their costs. Following the entry of the judgment, Newport Bay Investment Company and Hal G. Polley moved to set aside said judgment on the ground of mistake and asked leave to amend their answer. Said defendants appeal from the judgment and the order denying their motion.

The collision occurred on July 24, 1951, at about 4:30 p. m. The Balboa, a passenger-carrying motor boat, 50 feet long, 10 feet wide, and weighing 11 tons, was proceeding westerly in the center of the channel between the south shore of Balboa Island and boats moored offshore, when it struck the moored Barbara and the float.

There is a conflict in the testimony relative to the cause of the collision. Defendant Hal G. Polley, who was operating the Balboa, testified that when approaching' the Barbara, which was tied to the pier, he noticed a sailboat, the “Falcon,” sailing in a northwesterly direction toward Balboa Island; that he reduced the speed of his boat and permitted the Falcon to sail across his bow; that the Falcon sailed across to the shoreline, came about and sailed about in a westerly direction ; that she had cleared the bow of the Balboa again with ample space when she turned downwind and headed directly toward the bow of the Balboa; that he reduced the speed of his engine, turned the wheel hard over to the right in order to give the sailboat as much clearance as possible; that be[455]fore the Balboa had completely lost way, it collided with the Barbara, tied to the pier.

Defendant Nancy Davis, who was operating the Falcon, testified that she and her sister, with her sister’s friend, Sarah, were sailing across the channel in a northwesterly direction; that she first saw the Balboa when she was about in the middle of the bay; that the wind was coming from the west; that she proceeded toward the buoys and the sailboats which were anchored off Balboa Island; that when she reached the north side of the pier and anchored boats, the Balboa was approximately 50 feet to the east; that if she had kept going in the same direction, the Falcon would have collided with the Balboa; that she came about and went back in the general direction she came from (south); that she was headed out in the channel and just about passed the buoys when the Balboa turned slowly into the Barbara and collided with it; that when she came about, the operator of the Balboa had plenty of distance and time to continue his course and not strike the Barbara; that the Falcon did not at any time cross the bow of the Balboa; that the reason the Balboa went to the right and hit the Barbara was because Polley was looking at her and was not looking where he was going.