Case No. 10500 is an appeal by defendants H. W. Wessendorf and Margaret C. Wessendorf from a judgment entered against them in the sum of $7,500. Case No. 10512 involves the same parties, and is an appeal by plaintiff from an order granting a new trial entered after notice given of the first appeal.
It will be necessary to dispose of plaintiff’s appeal first. The record shows that two judgments in the same amount were entered in this action аgainst the same defendants, the
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first on February 7, 1935; the second on June 3, 1935. This later judgment was actually signed bn April 23, 1935, when the trial judge, on his own motion, signed and filed an order vacating the original findings of fact, conclusions of law and judgment, in the same order entering amended findings and conclusions, prepared “to conform to the proof”. The original ‘ ‘ Findings ’ ’ had failed to include findings that the plaintiff was not guilty of contributory negligence that proximately contributed to his injuries; that the accident was not unavoidable; that the allegations of the answer were untrue. All these deficiencies were supplied in the new findings which the court had ordered entеred on March 18, 1935, when defendants’ motion for a new trial was denied, but which, as stated, were not filed until more than a month later on April 23d. Under the new section 662, Code of Civil Procedure, added to the code in 1929, the triаl court was empowered to make this order, as declared in the recent case of
Spier
v.
Lang,
4 Cal. (2d) 711 [
We pass now to consideration of the appeal of the defendants. It appears from the transcript that plaintiff, returning home from his work, was driving his Chevrolet automobile, an inclosed car, westerly on Sunset Boulevard in Los Angeles, between 2:30 and 3:00 A. M., March 18, 1934. As he approached the point where Hyperion Avenue enters Sunset Boulevard from the south, he prepared to make a left-hand turn, necessitating his crossing two sets of car tracks. He testified, “I held out my hand about a half a block before I made my entrance to the car track.” He also testified that before turning he saw an automobile coming east on Sunset Boulеvard in the neighborhood of Sanborn Avenue, which enters Sunset a block west of Hyperion. He looked backward also to observe the traffic, dropped his outstretched arm for a moment as he was going into the turn about six feet east of the intersection center; then held it out again, traveling 10 to 15 miles per hour, and knew nothing more until he regained consciousness at the General Hospital five or six hours later. His car was struck by a Cadillac belonging to Margaret C. Wessendorf which was being driven by her husband, with her knowledge and consent. Mr. Wessendorf had no passenger with him. He was traveling east on Sunset, having taken some friends home to Hollywood from the Jonathan Club and at the time of the accident was returning to the club. He testified that he did not see the Chevrolet until it was about 25 feet away from him; that he then swung over to the right side of the streеt and struck plaintiff’s car. There was evidence *20 that before the collision he applied his brakes, skidded, and that he stopped about 100 feet away from plaintiff’s car. Mr. and Mrs. Bear were also driving eаsterly on Sunset Boulevard at that time, and testified that Mr. Wessendorf passed them on the left in the neighborhood of Sanborn and Sunset. Mr. Bear testified that he was driving his own car at 40 to 45 miles per hour; Mrs. Bear, that Wessendorf wаs traveling 60 to 70 miles per hour when he passed them. Bear also testified that the Wessendorf car continued on the extreme northerly track until striking the other car, “swerving in then toward the curbing”. He stated that Ingram’s cаr rolled clear over, “I believe twice. Mr. Ingram was thrown out of the car . . . forward . . . through the front of the car, possibly 15 or 20 feet clear of the car.”
In this accident, plaintiff sustained serious injuries, including concussion of the brain, a wound upon the head and a comminuted fracture of the femur of one of his legs. As a result this leg was shortened causing permanent lameness and at the time of trial, almost a year latеr, plaintiff was walking on crutches. There was testimony that he would probably require the use of crutches for another year.
Defendants in their appeal contend that the evidence adduced at thе trial was insufficient to sustain the decision of the court against them, specifying also certain errors, claimed to have been committed by the court in ruling upon points of evidence and in having filed the findings, conclusions and judgment. As to the last item, we may say that if any error occurred in the original documents, it was cured by the court’s filing amended orders; as to the exceptions on controverted points of evidenсe, we find from an examination of the record that none of them can be sustained, for the reason that in each instance the trial court ruled correctly. As to the other and chief ground of appeal, namely, insufficiency of the evidence, we note the claim that plaintiff was guilty of negligence as a matter of law, these appellants contending that he violated various and sundry provisions оf the California Vehicle Act, in that he did not drive to and pass to the right of the center of the intersection before making his left-hand turn; in that he failed, before turning, to observe whether the Cadillac was apрroaching at such a speed and so closely to the intersection as to threaten his safety; in that he did not stop in approaching and turning into the *21 intersection to see if the turn could be made in safеty; in that he failed to comply completely with the rule requiring an outstretched arm when making a turn; in that he drove an automobile so covered and obstructed as to obscure his vision to the rear.
In
Mast
v.
Claxton,
The trial court in the instant case, with all the facts and circumstances before it, decided that respondent did not contribute by his own negligence, if any existed, to the injuries which he received. We cannot say from our examination of
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the record that he was guilty of contributory negligence аs a matter of law. 1 ‘ When the facts are clear and undisputed, and when no other inference than that of negligence or contributory negligence can be drawn from such facts, then and only then, is the questiоn of negligence or contributory negligence one of law.”
(Hanson
v.
Cordoza,
Appellants claim that excessive damages were awarded respondent by the court. In view of the injuries sustained, we hold that as to aрpellant H. W. Wessondorf, the claim is not well founded, and as to him the judgment is affirmed. As to appellant Margaret C. Wessendorf the judgment must be modified because of the $5,000 recovery limitation which was fixed in a casе of this sort by section 1714)4 of the Civil Code, in effect at the time plaintiff’s injuries were received; since superseded by section 402 of the Vehicle Code. (Stats. 1935, p. 93, at p. 153.)
The orders of May 10, 1935, and May 17, 1935, granting motion for nеw trial, reversed. Judgment against H. W. Wessendorf affirmed; judgment against Margaret C. Wessendorf modified by reducing it in amount from $7,500 to $5,000.
York, Acting P. J., and Doran, J., concurred.
A petition by defendants and appellants to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on July 10, 1936.