Sozzi v. Gull

KAUFMAN, P. J. Respondents, Joseph and Lena Sozzi, individually and as guardians ad litem, filed this action for personal injuries sustained by their minor daughter, Angelina, and for the wrongful death of another daughter, Mary. The girls were riding as guests in an automobile owned and operated by Angelina’s fiancé, Donald T. McGinity. The McGinity Mercury was involved in a collision with a 1946 [233]Ford owned by the appellant, John W. Gull, and operated with his permission by his minor son, the appellant, John M. Gull. McGinity was originally named as a defendant but subsequently dismissed by nonsuit, as there was no evidence of wilful misconduct (Veh. Code, § 17158). Thereafter, the jury returned a verdict in favor of the plaintiffs. On this appeal from the judgment entered on the verdict, appellants’ assignments of error are that the trial court: (1) improperly refused their proffered instruction based on former section 544, subdivision (a), of the Vehicle Code; (2) excluded certain evidence; and (3) communicated with the jury while they were deliberating, contrary to sections 613 and 614 of the Code of Civil Procedure.

The accident occurred about 8:25 a.m. on May 8, 1956, on U.S. Highway 40 at the entrance to the Nut Tree restaurant near Vacaville. The highway is a straight, level four-lane road with a 30-foot divider strip between the east and westbound lanes. There is a break in the divider strip to permit cars to cross the highway, with walnut trees on both sides of the opening and the divider strip. The McGinity Mercury was headed toward Sacramento in the innermost eastbound lane, the Gull Ford toward Benicia in the outermost westbound lane. McGinity testified that he pulled into the opening of the divider strip across from the restaurant entrance to make a left turn. He waited for several minutes until after four or five cars had passed. He did not see any other vehicle and proceeded across the westbound lanes at 5-15 miles an hour. Just as he entered the outermost westbound lane, the girls made statements wondering when the Gull vehicle was going to stop.

Appellant, J. M. Gull, testified that he was driving about 50-55 miles per hour when he suddenly saw the McGinity vehicle about 100-150 feet away pull across the lane in front of him. He put on his brakes and turned his car 2 feet to the left but was unable to avoid the collision. He was familiar with the area. There were no other vehicles close to him as he approached the restaurant. The investigating officer subsequently established the point of impact at 4 feet north of the line dividing the westbound lanes, approximately in the center of the entrance to the Nut Tree. The Mercury was damaged on the right rear fender ■ the Ford on the front end. The speed limit in the area was 55 miles per hour.