Cook v. Mehlberg

BARNARD, P. J. This is an action for damages arising out of a noncollision accident. The accident happened about 4 p.m. on December 26, 1953, two miles west of Wasco, at the intersection of Highway 466 and Central Avenue. Highway 466 is a two-way paved highway, each lane being 12 feet wide and with a white line in the center. There was a 6-foot shoulder on each side, and 12 feet of smooth dirt between the south shoulder and the south edge of the road. Central Avenue comes into Highway 466 from the south and is also paved.

[11]The plaintiffs, Mr. and Mrs. Cook, were traveling west on Highway 466 at about 40 miles an hour with several cars ahead of them, one of these being driven by the defendant. The evidence indicates that as the defendant was turning to go south on Central Mr. Cook, who was driving plaintiff’s car, attempted to pass the defendant’s car and the car behind it, with the result that he crashed into a telephone pole which stood at a point 24 feet south of the pavement on Highway 466, and 22 feet west of the west edge of the pavement on Central Avenue. His car left skid marks about 120 feet long which started south of the white line on Highway 466 at a point about 90 feet east of Central Avenue, and continued in a southwesterly direction over the pavement, shoulder and smooth dirt to the east edge of Central Avenue across Central and to the car as it rested against the pole. His car did not strike the defendant’s ear and it appears, without conflict, that the defendant stopped her car at or near the white line on Highway 466 as she was trying to turn into Central. Mrs. Cook was seriously injured and Mr. Cook received slight injuries.

This action was filed on March 16,1954. The complaint contained four causes of action. The first cause alleged that Mrs. Cook was at all times the owner of a 1950 Hudson which was being driven by Mr. Cook; that defendant’s ear was so negligently driven as to force plaintiffs’ car off the highway and into the power pole; and that as a direct result “the automobile of the said Bertha M. Cook was damaged” in the sum of $650. The second, third and fourth causes of action realleged those facts. The prayer was for certain damages for Mrs. Cook, certain damages for Mr. Cook, and for $650 for expense incurred by Mrs. Cook “for repairs to her said vehicle.” The answer alleged, among other things, that the Hudson was the property of Mrs. Cook, and was being driven by Mr. Cook with her permission, and set up the usual affirmative defenses.

Mr. Cook’s deposition was taken on June 30, 1954, and he died on August 31, 1954, from causes entirely unconnected with this accident. Mrs. Cook, as administratrix of his estate, was substituted in his place in the action. The action was tried on November 19, 22, 23 and 25,1954, and it was dismissed as to Mr. Cook on November 23. A jury returned a unanimous verdict in favor of the defendant. Mrs. Cook has appealed from the judgment.