Mason v. Ochinero

GRIFFIN, J. Plaintiff and respondent driver sought damages against defendants and appellants for personal injury and property damage resulting from a collision between two pick-up trucks. Defendant and appellant driver Mijach was driving one owned by defendant and appellant Oehinero. Defendants denied any negligence and alleged plaintiff was [625]guilty of contributory negligence. They also filed a cross-complaint against plaintiff for personal injury and damages. A jury verdict resulted in a judgment for plaintiff in the sum of $7,000, which also found against defendants on their cross-complaint. On this appeal defendants contend that there was not sufficient evidence of their negligence to support the verdict and judgment, and that plaintiff was guilty of contributory negligence as a matter of law

The accident occurred on January 27, 1955, about 12:30 p. m. where Mountain View (running east and west) and Walnut Avenue (running north and south) intersect in Fresno County. At this intersection there is a “jog” in Walnut Avenue to the extent the westerly edge of Walnut, north of Mountain View, is virtually in line with the easterly edge of Walnut, south of the intersection. There were no traffic signs or signals and the view of the intersection was unobstructed except for grape vines near the northeast corner. Plaintiff was proceeding south on Walnut. Defendant was traveling east on Mountain View. According to plaintiff, he approached the intersection at about 20 to 25 miles per hour, reduced his speed to 15 miles as he reached it, and while crossing through the intersection. There was some corroboration of this testimony by one other witness. Plaintiff stated he looked in both directions on Mountain View, saw defendants’ ear to his right (west) about 250 feet away and then started to cross the intersection; that as he crossed the center line he saw defendants’ vehicle “right on him”; that it struck his truck on its right side after plaintiff’s truck was south of the center line of Mountain View; that he (plaintiff) was “coming over onto” his right side of the road all of the time and did not get over to the left side until the defendants’ truck hit him. There were some discrepancies between the plaintiff’s testimony and other statements made in his deposition and to the officers.

Defendant Mijach testified he was traveling about 50 miles per hour while approaching the intersection (others placed it at 55 miles per hour); that he had slowed to 40 miles per hour at the time of the impact; and that it appeared to him plaintiff was going to stop to let him go by but instead plaintiff speeded up again and attempted to go in front of him. Broken skid marks showed for approximately 94 feet up to the point of impact. Likewise, there was testimony that the point of impact was about 10 feet south of the center line of Mountain View and six feet east of the center line of Walnut Avenue,