Lurie v. Nelson

FOX, P. J. Plaintiff appeals from a judgment for defendants in an action for personal injuries. The sole ground of appeal is based upon the refusal of the trial court to instruct the jury in the language of section 22100, subdivision (a) of the Vehicle Code (formerly and at the time of the trial, Veh. Code, § 540). Section 22100, subdivision (a), reads: “Right Turns. Both the approach for a right turn and a right turn shall be made as close as practicable to the right-hand curb or edge of the roadway. ’ ’

The accident occurred June 9, 1956, on Pacific Coast Highway at the intersection of Hawthorne Boulevard. Traffic at the intersection is controlled by signals. Plaintiff was riding in a car owned and driven by Mrs. Journey. They were proceeding west on Pacific Coast Highway in the second lane right of the center line and as they reached the intersection of Hawthorne Boulevard, the signal was red. Mrs. Journey [379]brought her ear to a complete stop, still in the same lane of traffic. There were no vehicles stopped ahead or to the right of the Journey car although there may have been a car on the left, in the lane next to the center line. There was a paved portion of highway to the right wide enough to accommodate another vehicle, although it is not clear whether the “third” lane was marked with a white line.

Several seconds after making a full stop the Journey car was struck from behind by a tank truck driven by defendant Nelson and owned by defendant Superior Vacuum Truck Service.1 Plaintiff was thrown about in the car and suffered various injuries.

Nelson testified that as he approached the intersection, he had formed the intention of making a right turn onto Hawthorne Boulevard. He was also travelling west on Pacific Coast Highway at about 20 to 25 miles per hour and in the same traffic lane as the Journey vehicle. At about 200 to 300 feet east of the intersection, he observed the Journey car stopped for the red light. He slowed the truck to approximately 15 to 20 miles per hour by light application of the brakes. When he was three car lengths or about “50 feet or so” from the Journey ear, he fully applied his brakes and discovered that the power assist device was not operating. He struggled to bring the truck to a stop by applying full force on the brake pedal which still operated manually. He testified : “After I had done everything I possibly could to try to stop the truck, and realizing that I wasn’t going to get stopped in time, that was when I swerved.” The “swerve” was to the right and the left front of the truck struck the right rear of the Journey car, causing damage to the car in the amount of $46.70.