Hitchcock v. Tosta

FOURT, J. This is an appeal by the defendant and cross-complainant from a judgment for the plaintiff and cross-defendant, in an action arising out of a collision between an automobile and a parked truck.

The plaintiff brought an action to recover damages to plaintiff’s truck and trailer alleging, among other things, that the collision in question was caused by the negligence of Tosta in the operation of his automobile. Tosta filed an answer denying any negligence and pleading contributory negligence upon the part of the plaintiff, and also filed a [434]cross-complaint wherein he alleged, among other things, that the damages to his person and automobile were caused by the negligence of the cross-defendant. An answer was filed by the cross-defendant wherein cross-defendant denied any negligence and pleaded contributory negligence upon the part of Tosta.

A trial was had before a jury, which returned' a verdict for the plaintiff for the damages to plaintiff’s truck and trailer. The cross-complainant was denied recovery under his cross-complaint.

A résumé of the facts, from a reading of the testimony, is as follows: Vernon Kelly, the plaintiff's truck driver, left Santa Maria with a loaded tank truck and trailer early on the morning of August 31, 1954. When he reached the top of Cottonwood Pass on Highway 41, at about 7 o’clock a. m., he parked the truck and trailer heading easterly with the left wheels about 2 feet off of the main traveled portion of the highway “right against the edge of the mountain,” where there was “not another inch” of space to the right, and where it was impossible to park any farther to the right because of the embankment. The place where the driver stopped was the only place for a distance of 6 miles to the west from the top of the grade where a truck and trailer could be pulled off of the highway, to the end that the brakes and other equipment could be tested.

The driver of the truck had driven the route many times and knew that there was a dangerous downgrade for about 3 to 5 miles for easterly traffic, after leaving the top of the pass, and he stopped to check his brakes as a matter of precaution. After checking the brakes on each wheel, the driver was preparing to drive the truck back onto the highway.

The main traveled portion of the highway between the shoulders was about 16 to 17 feet wide. The shoulders were partly paved and partly dirt, but there was a distinct line between the main traveled portion of the pavement and the shoulder.