Chase v. Jonkey

DORAN, J.

This is an action for damages resulting from an automobile accident which occurred at the intersection of Sunset Boulevard and Van Ness Avenue in Los Angeles. The accident happened in the month of August, about 5 o’clock in the evening. The two streets above mentioned intersect at right angles. Sunset Boulevard is eighty! feet wide and Van Ness Avenue is sixty feet wide. Sunset Boulevard is a main thoroughfare with "stop" signs posted at its entrance from Van Ness Avenue for traffic traveling north and south on Van Ness. ]

Quoting from the reporter’s transcript of the testimony, plaintiff’s description of the accident is as follows:

“Well, I was driving north ... as I .said. I was op the way to take dinner at a friend’s house. When I came to Sunset I stopped, and I saw cars coming in bunches from the east on Sunset. I left several bunches of them go by, I don’t know how many, maybe twenty, maybe twenty-five or thirty cars all told may have gone by before I started to go out. I looked to the west down Sunset, and I could see—I only saw one ear, there may have been some other cars back of it, but they were quite a distance back. As I then started to go across, that is, put my car into low, and then into second, and by the time I got to center of Sunset I looked again to the right to see that no cars were coming near me, and there were none near me, and then I started to the north, turned my head, and I saw the car that must have struck me coming, let’s see, how shall I describe it? Well, say going a little bit of an angle, diagonally across, apparently in front of me, on Sunset.”

Plaintiff’s witness, Glasburg, quoting substantially from the reporter’s transcript, testified as follows:

“I was driving in an easterly direction on Sunset, waiting for a possible opportunity to make a left-hand turn; we were, I would say, possibly seventy-five or eighty feet from the intersection. Well, as near as I can recollect, there was a ear passed us on the right, and then this car on the left passed, because I recall it was hugging the center line on the left-hand side, hugging the center line as much as it possibly could, because it was on the wrong side of the road, which rather frightened me, because I was getting ready for a left-hand turn, and I hadn’t figured on any car coming in that direction. At this time plaintiff’s ear was proceeding slowly across Sunset Boulevard when the car that passed me on the left, which I should say was traveling at least sixty miles per hour, struck him. The front of plaintiff’s car at the time of the collision was just about the center of the intersection. ’ ’

Miss Isabel Sturr, who was riding with the witness Glasburg, gave substantially the same account of the accident.

The defendant’s witness, Frances Malcom, who was riding with defendant at the time of the accident, testified in part as follows: “Q. Now, let’s get this straight again. When you saw Mr. Chase’s car it was just sticking its front end out into Sunset about a foot beyond this south line? A. Yes. Q. At that time your car was where ? A. Just before the intersection, approaching the intersection. ’ ’

The defendant himself testified as follows with respect to this phase of the ease: “Q. Where was Mr. Chase’s car when you first saw it? A. Well, when I first saw him he was just starting up. Q. Whereabouts ? Where was he as far as the intersection was concerned? A. Well, he was approximately even with the curb line of Sunset. Q. You were where at that time? A. I was just entering the intersection; approximately, I should say a little behind the curb line of Van Ness, maybe a couple or three feet.” Defendant Jonkfey also testified that at the time he entered the intersection he was traveling not to exceed twenty-five miles an hour, and denied that he drove his car north of the center line of Sunset Boulevard.

It is undisputed that the force of the collision swung the plaintiff’s car around to the east, and when it came to rest it was pointed in a southeasterly direction with the front thereof about fifteen feet from the south curb of Sunset Boulevard on the east side of Van Ness.

The foregoing is not all of the evidence, but p substantial portion thereof. The court found that the defendant was guilty of negligence but that plaintiff was guilty of contributory negligence, and gave judgment for the defendant.

Plaintiff appeals on the sole ground that there w*as no competent evidence upon which the court could base its finding that plaintiff was negligent and that such negligence directly and proximately contributed to his injuries and damage. This contention by plaintiff and appellant must be sustained.

The argument by respondent that there is a very sharp conflict in the evidence which the trial court resolved in favor of the defendant, and which may not be disturbed upoA appeal, is unavailing.

As to the conduct of the plaintiff, there is no conflict in the evidence. There is no dispute as to where the point of impact occurred, nor as to the location of the cars after the iippact, when they came to rest. Plaintiff did everything that it was humanly possible for a prudent, careful and cautious driver to do in proceeding to cross the thoroughfare, and respondent’s effort to apply the rule that: “One who looks and doesn’t see what he could not have failed to see, is guilty of contributory negligence as a matter of law” is unimpressive.

Viewing defendant’s testimony and that of his companion in its most favorable light, the defendant disregarded section 131 of the California Vehicle Act, as amended by Statutes of 1931, page 212.6, by usurping plaintiff’s right of way. ;

Respondent’s argument that plaintiff’s car struck defendant’s car is definitely refuted by the undisputed evidence of the physical facts, which this court cannot ignore.

As was said in Austin v. Newton, 46 Cal. App. 493 [189 Pac. 471] : “Undoubtedly an appellate court, in reviewing the evidence, is bound to exercise its intelligence, and in doing so must recognize that certain facts are controlled by immutable physical laws. It cannot permit the verdict of a jury to change such facts, because, as said in Quigley v. Naughton, 100 App. Div. 476 [91 N. Y. Supp. 491], to do so would, in effect, destroy the intelligence of the court. And when "the undisputed circumstances show that the story told by litigant and his witnesses cannot by any possibility be true, or when their testimony is inherently impossible, the appellate court should not hesitate to reverse the judgment, to the end that the cause again may be submitted to the determination of a jury or trial judge." In Houghton v. Loma Prieta Lumber Co., 152 Cal. 574 [93 Pac. 377], the court reviewed the law as follows: “A finding against the great weight and preponderance of the evidence can be maintained on the doctrine of ‘conflict’ only where the alleged conflict rests upon evidence, either direct or circumstantial, which so materially contradicts the testimony on the other side, or is so radically inconsistent with it, as to leave room in a fair and reasonable mind to find the fact either way. This feature of the rule upon the ‘conflict’ of evidence has been heretofore declared by this court. In Smith v. Belshaw, 89 Cal. 427 [26 Pac. 834], the court said: ‘While we will not disturb the verdict of a jury where the evidence is conflicting upon substantial matters, yet in all eases the verdict must have some meritorious support from the evidence or be set aside and disregarded.’ In Hedge v. Williams, 131 Cal. 455 [82 Am. St. Rep. 366, 63 Pac. 721, 64 Pac. 106], the court says: ‘Upon the part of respondent it is insisted that the verdict of the jury is conclusive as to the capacity in which Fontain was acting in repairing the tank. This contention can only be sound if there was a substantial conflict of the evidence.’ (The italics are ours.) In Driscoll v. Cable Ry. Co., 97 Cal. 553 [33 Am. St. Rep. 203, 32 Pac. 591], it is said: ‘The rule is well established that this court will not disturb a verdict where there is a conflict of evidence on material points, and when there is evidence to support the verdict; but such conflict and such evidence must be real and substantial. ’ ”i

The evidence clearly reveals that plaintiff and appellant was at the intersection and was waiting relatively some time before the defendant and respondent arrived at the crossing. He waited patiently and then proceeded cautiously, after looking in both directions, and to find under the circumstances that he was guilty of negligence would be the equivalent of holding that an operator of an automobile, under such conditions, crosses a thoroughfare at his peril. I

The notice of appeal seeks to effect an appeal from the order denying a motion for a .new trial, which order is not appealable; such appeal from such order is dismissed. Judgment is reversed and cause remanded.

York, J., concurred.