Hagenah v. Bidwell
189 P. 799
Cal. Ct. App.
1920
Check Treatment
NOURSE, J.

Thе defendants appeal from a judgment for personal injuries sustained by the plaintiff while riding on a motorcycle which, while being driven by one Reed, came into collision with an automobile driven by the defendant, Maude A. Bidwell.

The plaintiff alleged that at the time of the accident he was riding along a" public highway “in a westerly direction and was on the extreme northerly side of said road within a foоt from the northerly edge of said highway; that while riding as aforesaid plaintiff was on his right-hand side of the road” and that “the defendants were riding in thеir aforesaid automobile along said public highway in an easterly direction . . . and were going in the opposite direction tо that in which the plaintiff was proceeding . . . ; that said defendants were driving said automobile on the northern side of said public highway, being their left-hand side of said highway and being the side on which the plaintiff was riding.” The defendants, in addition to denying these allegations, affirmatively plеaded that, as they were proceeding easterly on the highway in question and on the right-hand or southern side thereof, the motorсycle driven by Reed was proceeding westerly toward them on the same side of the highway, being on Reed’s left-hand side thereof; that Reed in driving the motorcycle approached so close to the automobile that a head-on collision appeared to be-imminent; that confronted by this danger produced by Reed’s negligence, the defendant, Maude A. Bidwell, turned the autоmobile to the left in a direction which caused it to move diagonally across the road to the north side; that at apprоximately the same instant Reed turned his motorcycle so that it headed diagonally across the road to his right, and that the collisiоn occurred at the extreme north edge of the road. The evidence, without conflict in these essential particulars, shоws that the accident occurred exactly as described in the answer. Notwithstanding these facts, judgment was rendered for the plаintiff, the only findings on these matters *559 being that the allegations set forth in the complaint were true and were facts established by the evidеnce, except in an immaterial particular, and that the ‍‌​​‌‌‌​‌‌​​‌‌‌‌‌‌​‌‌‌‌​​​‌‌​​​​‌​​​‌​‌‌​​​‌‌‌​‌​‍denials and allegations in the answer and cross-complaints of the respective defendants were not true and not facts, except in immaterial particulars.

The defendants also рleaded contributory negligence on the part of the plaintiff in riding with Reed in the manner in which he was riding and under the conditions claimеd by the defendants to have existed. It was contended at the trial that since Reed was not a party to this suit, the defendants’ cross-сomplaints could not be sustained as against the plaintiff Hagenah. The arguments on behalf of the appellants on the subjeсt of Hagenah’s claimed contributory negligence may be disregarded, because on that subject the evidence was conflicting, and this court is bound by the finding of the trial court.

Under a narrow and extremely technical interpretation of the allegations in the complaint the finding that they were true is sought to be sustained by the suggestion that at the very moment of the collision the defendants’ automobile was on the left-hand side of the road and at that moment the motorcycle was on the right-hand side. [1] It is not true, however, that thе respective machines were at that moment proceeding either westerly or easterly along that side of the roаd. The driver of each machine was trying to avoid collision with the other, and each machine at the moment of the accident was proceeding diagonally across and not along the road. There was no conflict ‍‌​​‌‌‌​‌‌​​‌‌‌‌‌‌​‌‌‌‌​​​‌‌​​​​‌​​​‌​‌‌​​​‌‌‌​‌​‍in regard to this important matter, and the finding that the allegations of the complaint to the effect that at the time of the accident the plaintiff was proceeding westerly along his right-hand side of the road and the defendants were proceeding easterly along their left-hand side of the road is not sustained by the evidence.

It is argued that at the moment of the collision the defendants were on their left-hand side оf the road. This cannot be controverted, but it does not follow as a matter of law that the defendants were negligent in being where they were at that time. [2] It is not sufficient in a suit of this nature for the plaintiff to show that an accident occurred and that he was injured, but he must also show that the accident occurred by reason of the negligence of the defendants, or, in this case, of the wife, who was driving the machine. *560 (Cary v. Los Angeles Ry. Co., 157 Cal. 599, 604, [21 Ann. Cas. 1329, 27 L. R. A. (N. S.) 764, 108 Pac. 682]; Marsiglia v. Dozier, 161 Cal. 403, 405, [119 Pac. 505].) [3] The allegations of the complaint that defendants were traveling along ‍‌​​‌‌‌​‌‌​​‌‌‌‌‌‌​‌‌‌‌​​​‌‌​​​​‌​​​‌​‌‌​​​‌‌‌​‌​‍their left-hand side of the highway do nоt make a case of negligence per se because there are certain circumstances under which the law permits one to use that portion of the highway. [4] It is the duty of the driver-of a vehicle who is suddenly confronted with danger, though arising from the fault of anothеr, to seek to avoid a collision. (Skene v. Graham, 114 Me. 229, [95 Atl. 950]; Hartley v. Lasater, 96 Wash. 407, [165 Pac. 106].) Whether he has taken the proper course depends upon all the circumstanсes of the case. (Hartley v. Lasater, supra; Harrington v. Los Angeles Ry. Co., 140 Cal. 514, 521, [98 Am. St. Rep. 85, 63 L. R. A. 238, 74 Pac. 15]; County of Alameda v. Tieslau, 44 Cal. App. 332, [186 Pac. 398].) [5] Accordingly, when the question of negligence is one of fact and not one of law, the defendant is entitled to a finding on the facts put in ‍‌​​‌‌‌​‌‌​​‌‌‌‌‌‌​‌‌‌‌​​​‌‌​​​​‌​​​‌​‌‌​​​‌‌‌​‌​‍issue in order that the court may on appeal determine whether the trial court drew the proper conclusions of law from the facts so found. [6] Here the circumstances under which the collision occurred were definitely put in issue by the answer and were proved substantially without conflict at the trial. The finding that all the allegations of the answer were untrue wаs not sustained by the evidence.

If the court had found in accordance with the evidence it would then have been called uрon to determine who had the. last clear chance of ‍‌​​‌‌‌​‌‌​​‌‌‌‌‌‌​‌‌‌‌​​​‌‌​​​​‌​​​‌​‌‌​​​‌‌‌​‌​‍avoiding the collision and also whether the proximate cаuse of tHe collision was the negligence of defendants or the negligence of Reed. [7] For it is true that, though the negligence of the driver of the motorcycle may not be imputed to respondent under a plea of contributory negligence, neverthеless, if the proximate -cause of the collision was the negligence of the driver of the motorcycle upon which respondent was riding, he cannot recover. These questions, however, cannot be determined here because the findings which were made negative the essential facts upon which these legal questions must be -based.

For these reasons the judgment is reversed.

Brittain, J., and Langdon, P. J., concurred.