252 P. 773 | Cal. Ct. App. | 1927
Action to recover damages for personal injuries alleged to have been suffered by plaintiff while riding as a passenger for hire in one of the auto-stages of respondent Motor Transit Company.
The complaint alleged the company and defendant Otto Pauls to be joint tort-feasors and it charged that they negligently operated their respective machines as to collide one with the other, causing the plaintiff the injuries complained of. Defendant Otto Pauls defaulted and a judgment in the sum of two thousand dollars was rendered against him. Defendant Motor Company denied specifically the allegations of the complaint and further answering alleged that the accident was caused solely through the negligence of its co-defendant Pauls. Trial was had by jury as to defendant Motor Company, which resulted in a verdict in its favor, and upon judgment being rendered thereon, this appeal was taken.
The sole question here presented relates to the giving and refusal to give certain instructions as to the duty of the driver of an automobile when suddenly confronted with a dangerous situation. So much of the evidence as is necessary for an understanding and discussion of the case shows that on June 18, 1922, plaintiff was being carried as a passenger for hire by defendant Motor Transit Company in one of its auto-busses, and while en route therein at a point on the public highway about halfway between the town of Montebello and the city of Los Angeles, the bus collided with a car owned by defendant Pauls, resulting in the alleged injuries. At the time of the accident the auto-bus of defendant was traveling westerly upon the highway toward Los Angeles, and the automobile of the defendant Pauls was being operated and driven thereon by one Cooper, as the agent of Pauls, in an easterly direction toward Montebello. The accident occurred in the night-time and each of the defendants claimed that the machine of the other was on the wrong side of the road. Upon this subject there was a sharp conflict in the evidence. Each set of witnesses agreed that both vehicles were operated upon their right *669 side of the highway until within a point variously estimated at from ten to a hundred feet of each other. One set of witnesses testified that the Chevrolet car belonging to defendant Pauls then left its right side and confronted the driver of the auto-stage in which plaintiff was riding, the other set testifying that the stage left its proper position and crossed the road directly in front of the Chevrolet car. When confronted with the situation, the driver of defendant company testified that he had turned to the left to escape the impending danger.
[1] The rule is well established that where one without his own fault is through the negligence of another put in such apparent peril as to cause loss of self-possession, and as a natural result thereof, in attempting to escape he puts himself in a more dangerous position, he may not be guilty of negligence in so doing. This rule is held to apply only where such person is placed in danger through the negligence of another and without fault on his part. [2] When two vehicles collide on the public highway and damage results therefrom, the question of whose negligence cause the injury is generally one for the jury. (Newman v. Overholzer,
The judgment is affirmed.
Knight, J., and Campbell, J., pro tem., concurred.
A petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on March 14, 1927. *672