Sims v. Phillips

WARNE, J. pro tem.* This is an appeal from a judgment entered upon a verdict for defendant in a wrongful death and personal injury action in which the jury made a special finding that the respondent was not guilty of negligence.

The appellants are father and son. James Otis Sims, hereinafter referred to as appellant, was severely injured and his wife was killed instantly in an accident which occurred on United States Highway 99, between Redding and Dunsmuir where the highway is one lane each way, is of blacktop construction, is 22 feet wide, has a curve with a 500 foot radius, and a 6 per cent grade ascending to the north. The accident happened about 4 o’clock on the afternoon of May 3, 1956. [795]It had been raining and was misty at the time of the accident. The pavement was wet.

Appellant and his wife were traveling north in their Pontiac automobile at an estimated speed of 40 to 45 miles per hour. Respondent was southbound, driving a GMC truck-tractor which was pulling a flatbed trailer upon which was another trailer loaded “piggy-back,” and was traveling at an estimated speed of 25 to 30 miles per hour. Respondent testified that he had just rounded the turn or curve and was from 50 to 150 feet distance from the Pontiac when it crossed about a foot over the white center line and into his lane, whereupon he pulled quickly over to the right to avoid the Pontiac and in so doing, the wheels of the right side of his truck went into a ditch at the side of the road. This was just before the impact. Respondent testified that he then glanced back into his right hand mirror as he felt the trailer might' hit some rocks off the right side of the road. Just then he felt the impact, and he looked back in the other rear view mirror and saw smoke and wheels flying. At no time preceding or during the accident did he apply his brakes.

Appellant contradicted respondent, testifying that his wife was driving and he was sitting alongside of her in the front seat. He was not looking ahead at the moment, but heard a distressed gasp from his wife and he looked up and saw the tractor in the southbound lane and the trailer blocking the northbound lane; that the trailer was less than 75 feet away and had already jack-knifed; that both the tractor and the Pontiac were in their proper lanes, but not the trailer.

It appears that the impact was between the left rear tire of the trailer being pulled by the GMC tractor and the left front of the bumper of the Pontiac. The rear axle and the dual wheels of the trailer were disengaged and knocked from under the trailer. The trailer, being carried “piggy-back,” had shifted to the left and made a deep groove down the roof of the Pontiac, leaving tire marks thereon. The disengaged wheels came to rest in the ditch on the westerly side of the highway, approximately opposite where the Pontiac came to rest on the east edge of the highway. The remainder of the tractor-trailer combination continued south and came to rest on the west side of the highway approximately 270 feet south of the Pontiac. The testimony is conflicting as to whether the debris and broken parts from the Pontiac were scattered in both lanes of the highway or were mostly in the northbound lane. A series of 10 gouges were left in the pavement by the