Martinez v. O'Blennis

MONROE, J. pro tem.* The plaintiff brought this action for damages for personal injuries received when an automobile in which she was sitting and which was parked upon a highway was struck by an automobile driven by the minor defendant, Warren R. O’Blennis. Judgment was rendered in favor of the defendants upon the verdict of a jury. A motion for new trial having been denied, the plaintiff appeals.

The plaintiff contends that the evidence established that the defendant was negligent and that there was no negligence on the part of the plaintiff, and that therefore the court erred in submitting the question of contributory negligence to the jury.

The evidence established that plaintiff on February 14, 1958, had been riding in an automobile driven by her husband. They stopped the car at a “teen-age canteen” where plaintiff’s husband left the ear and went to the canteen to find [339]their son who was attending a dance. The highway was a two-lane road and there was considerable traffic. The evidence indicates that the automobile in which plaintiff was riding was parked at least partly upon the travelled portion of the highway, enough so that it was in the line of approaching traffic. Plaintiff remained in the car. It was nighttime, and whether the lights upon the car were lighted is in dispute. The defendant was driving along the highway at a speed estimated at approximately 30 miles per hour. His evidence was that he did not see the automobile until it was too late to avoid a collision. He faced the lights of approaching vehicle. He testified that a number of cars were passing from the opposite direction, that there was no room to go around plaintiff’s automobile, and as a result the collision occurred. Defendant’s version of the collision was corroborated in all respects by the testimony of a guest in his car.

It will be seen, therefore, that there was presented to the jury a question of fact as to whether defendant was or was not guilty of negligence and the implied finding of the jury that defendant was not negligent finds ample support in the testimony.

The defendant’s answer alleged that the plaintiff was herself negligent. Her contributory negligence was also determined to be an issue at the pretrial conference. The undisputed fact is that the car was parked in a position where it was in the line of traffic on a two-lane road where considerable traffic was passing. The plaintiff remained in the car parked in such dangerous situation for an appreciable time while her husband left the car and went to find their son. These facts were ample to justify a finding that plaintiff failed to use ordinary care for her own safety and protection. There was therefore no error in submitting the issue of contributory negligence to the jury.