Castro v. E. A. Irish, Contractor

FOURT, J. Yolanda Castro sued E. A. Irish, Contractor, for personal injuries suffered when the automobile in which she was a passenger collided with a truck belonging to defendant and driven by one of its employees. She appeals from a judgment entered upon the jury’s verdict in favor of defendant contending, among other things, that the jury was improperly instructed on the issues of imminent peril and defendant’s burden of proving contributory negligence, assumption of risk and imputed negligence (which were not issues in the case) while no instruction was given on plaintiff’s theory. She contends further that defendant’s driver was negligent as a matter of law. We find no merit in any of these contentions.

On November 1, 1960, Yolanda was a passenger in the ear of her friend, Concepcion Vega, driving south on Glendale Boulevard. Yolanda was directing Concepcion to the home of Yolanda’s mother and they made a left turn at the intersection of Glendale and Montana Street. Concepcion turned left swiftly and suddenly across the northbound lane. Her car was struck on the right side by defendant’s truck which was approaching the intersection at 25-35 miles per hour in the second travel lane from the center strip, slightly behind and to the right of a van traveling in the first lane, which barely managed to avoid the Vega car.

Although the testimony is in conflict as to whether Concepcion turned from the left turn pocket or made her turn illegally from the first southbound travel lane, it appears that she drove halfway or more across the intersection in preparation to make her turn, then suddenly and without at any time having given either hand or lamp signal, she turned left across the traveled traffic lanes. The driver of the van in the lane to the left of defendant’s truck testified that when she turned sharply in front of him he slammed his brakes and only avoided collision “By a whisker.” There was additional testimony that the 1947 Dodge she was driving had a leak in the master brake cylinder, and an officer testified that after the accident the brake pedal could be depressed to the floor without resistance.

It is conceded that the truck van in the first northbound lane of Glendale Boulevard partially obscured the view of the intersection from defendant’s truck. Neither vehicle, however, appeared to be traveling at a speed in excess of the posted 35-miles-per-hour speed limit, and some impairment of vision is inevitable when a large vehicle travels between one’s car and [393]the center strip. Mr. Derwyn Severy, plaintiff’s expert witness, observed that defendant’s driver's view of the left turn pocket, where the Vega car should have waited before its turn, was not obstructed until his truck was approximately 100 feet from the intersection. By then, he observed, “. . . it doesn’t matter because . . . the ears from the turn pocket can’t race around fast enough to get into [a vulnerable] position.” It was the driver’s testimony that his speed was about 30 miles per hour when he applied his brakes as he noticed the van to his left was slowing down, but that the Vega automobile appeared in front of him almost simultaneously and he was unable to avoid collision.