BECHTOLD v. BISHOP CO

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District Court of Appeal, Fourth District, California.

BECHTOLD et al. v. BISHOP & CO., Inc., et al.*

McKINLEY et ux. v. SAME.

Civ. 2406

Decided: January 19, 1940

Sarau & Thompson and Roy W. Colegate, all of Palm Springs, for appellants. Kenneth Evan Schwinn, of Riverside, for respondents.

This is an appeal from those portions of the judgments which were against appellants. Judgments were also rendered against defendant Baker. He has not appealed and the judgments against him have become final.

On the morning of March 2, 1937, defendant Baker, with Ethel Gladys McKinley and Rachel A. Bechtold as his guests, was driving his 1927 model T Ford coupe easterly on Jurupa avenue in Riverside county. At the same time Edward West, as an employee of Bishop & Company, Inc., was driving a White delivery truck north on Garnet street. The two vehicles came into collision a few feet south of the center line of Jurupa avenue and east of the center line of Garnet street. Mrs. McKinley was seriously injured and Mrs. Bechtold died as a result of her injuries.

John B. Bechtold, the surviving husband, and George B. and John D. Bechtold, sons of John and Rachel, brought an action under the provisions of section 377 of the Code of Civil Procedure to recover damages suffered by them as a result of the death of Rachel. Both sons were over the age of thirty years and residents of the state of Washington. Judgment was rendered in their favor for $12,418.16 against all defendants, except the National Biscuit Company. The judgment against this defendant was limited to $5,000. We will hereafter refer to this as the Bechtold case.

Harry T. McKinley and Ethel Gladys McKinley, husband and wife, instituted an action against all defendants to recover damages resulting from the injuries suffered by Mrs. McKinley. These plaintiffs were given judgment against all defendants in the sum of $17,250. We will hereafter refer to this as the McKinley case.

Defendant John G. Baker filed a cross-complaint in the Bechtold case seeking to recover the damages suffered by him from appellants. Judgment went against him on his cross-complaint.

The cases were consolidated and tried together and are here on a single record. There are three separate sets of findings and conclusions of law and three separate judgments in the record,—one set of findings and a judgment in the Bechtold case; a second set of findings and a judgment on the Baker cross-complaint in that case; a third set of findings and a judgment in the McKinley case. This procedure is irregular. Where cases at law present similar issues and are consolidated, and are tried together, all issues should be settled by a single set of findings of fact and conclusions of law and by one judgment. Union Lumber Co. v. Simon, 150 Cal. 751, 89 P. 1077, 1081; Willamette, etc., Co. v. Los Angeles College Co., 94 Cal. 229, 29 P. 629. We must consider the separate findings of fact and conclusions of law together as though they were incorporated in a single document. They are in reality but one set of findings. Stanton v. Superior Court, 202 Cal. 478, 261 P. 1001.

Jurupa avenue and Garnet street are public streets in the county of Riverside. Garnet street runs north and south and Jurupa avenue slightly north of east and south of west. Thus they intersect each other at something more than a right angle. At the time of the accident Jurupa avenue had a pavement sixteen and one-half feet in width along its center and Garnet street had a pavement eighteen feet in width along its center. During the trial the term “intersection” was used to describe the intersection of the exterior lines of these pavements. We will continue the use of the word in that sense instead of giving it its legal meaning. Sec. 86, Vehicle Code, St.1935, p. 99. There were no curbs on either highway.

There were stop signs on Jurupa avenue on both sides of Garnet street which required all traffic on Jurupa avenue to stop before entering Garnet street. The word “Stop” was painted on the pavement on Jurupa avenue opposite the westerly stop sign. Tracks of the Union Pacific Railroad paralleled Jurupa avenue on the south, with the southerly rail twenty-two and one-half feet south of the southerly line of the pavement on Jurupa. A double row of eucalyptus trees paralleled the Union Pacific Railroad along the south side of the tracks, to the west of Garnet street, and were about thirteen feet from the south rail. Another row of eucalyptus trees paralleled Garnet street about fifteen feet to its west and ended at the double row just referred to. It is clear that at least as far as traffic proceeding north on Garnet street, and easterly on Jurupa avenue, was concerned, the intersection was an obstructed one. It is equally clear that the traffic was controlled at the intersection by the stop signs, sec. 465, Vehicle Code, and that the prima facie speed of vehicles traversing the intersection on Garnet street was thirty miles an hour, subd. 4, sec. 511(a), Vehicle Code, as the intersection was outside a business or a residential district. (All references in this opinion are to the Vehicle Code of 1935.)

In the Bechtold case it was alleged that Baker was guilty of wilful misconduct by deliberately, intentionally and wantonly failing to stop his automobile at the westerly stop sign and by driving his automobile into the intersection without any regard to oncoming traffic on Garnet street. Negligence on the part of Edward West was alleged in general terms. It was also alleged that he was driving the truck belonging to the National Biscuit Company as the agent and servant of Bishop & Company. This allegation was not denied.

Generally speaking, these allegations were repeated in the McKinley case with the added allegation that West was driving the truck as the agent and servant of the National Biscuit Company. This was not denied. It explains why, in the two cases, judgments in different amounts were rendered against the National Biscuit Company.

In both cases the trial court found Baker guilty of wilful misconduct, and West guilty of negligence, in almost the exact language of the pleadings. It was also found in both cases that the two women were injured as a direct and proximate result of the wilful misconduct of Baker and the negligence of West.

In the separate findings made on the cross-complaint of Baker we find the following: “It is true that the said Edward West while acting within the scope and course of his employment did so carelessly and recklessly and negligently drive, operate and control the said White truck automobile in that he failed and neglected to immediately stop said White truck automobile at the intersection of Jurupa Avenue and Garnet Street and thereby caused said White truck to run into and collide with the Ford automobile referred to in said cross-complaint.”

The first ground presented for a reversal of the judgment is that there is no evidence in the record to support the finding of the trial court that West was negligent in his operation of the White truck at the time of the accident. The determination of this question requires a somewhat detailed summary of the evidence. In doing this we must bear in mind that the trial court found Baker was guilty of wilful misconduct in the operation of his automobile and that this wilful misconduct contributed to the collision and to the injury of the two women; that no appeal was taken from this portion of the judgment; that consequently these findings of wilful misconduct and the portion of the judgment based upon them have become final and cannot now be questioned.

Baker and the two women were neighbors and lived westerly from the city of Riverside. Baker, with the two women as his guests, started the journey to Riverside to attend a funeral on the morning of March 2, 1937, traveling over Jurupa avenue. The day was clear and all the roadways were dry. Baker had traveled this route many times and was familiar with the intersection of Jurupa avenue with Garnet street and with the stop signs on the former. Baker testified that when he was forty-three feet westerly from the intersection he stopped and looked north and south on Garnet street four or five hundred feet and saw no vehicles. From this point on, Baker's testimony is confused and somewhat conflicting. We believe the following is a fair summary of his evidence most favorable to respondents: That he stopped again, opposite the stop sign and at the line marked “Stop”, and again looked the same distance north and south on Garnet street and saw no vehicles; that he proceeded into the intersection at a speed of between five and eight miles an hour; that when the front of his car had crossed, by several feet, the west line of the pavement on Garnet street produced across Jurupa avenue, he again looked to his right (the south) and saw the White truck four or five hundred feet away proceeding north on Jurupa avenue at a speed of between forty-five and fifty-five miles an hour; that he proceeded across the intersection at about the same speed and when his Ford was from four to five feet past the center of the intersection he again saw the truck five or ten, or maybe twenty, feet to his right coming towards him at about the same speed; that he tried to increase the speed of the Ford and turned slightly to his left; that the truck crashed into the right rear of his Ford driving it northeasterly off the pavement and causing it to turn over; that in traversing the intersection before the collision the left side of his Ford was about three feet southerly of the center line of Jurupa avenue.

Mrs. McKinley testified that when the Ford stopped before entering the intersection she looked both ways on Garnet street for a distance of four hundred fifty or five hundred feet and saw no vehicles; that she then looked down into her lap and sorted some letters; that she did not look up again until she heard Mrs. Bechtold scream; that she then looked to her right and saw the truck two feet distant from the Ford; that the truck was traveling forty-five miles an hour “easy”; that before she could turn her head away the collision occurred.

It is evident that no weight can be given the estimate by Mrs. McKinley as to the speed of the truck at the time of the impact. If it had been traveling forty-five miles an hour, as she estimated, she could have had it under observation for but an infinitesimal fraction of a second, too short a time for anyone to have estimated the speed of its approach. If it had been traveling but five miles an hour, as estimated by West, she still would have had neither the time nor the distance within which to form any credible estimate of its speed. This leaves the testimony of Baker as the only evidence in the record to support the finding of negligence on the part of West. Generally speaking, were this an ordinary case in which both drivers were found guilty of negligence, such findings of negligence might not be disturbed because of the conflict-in-the-evidence rule.

West testified that he was familiar with the intersection of Jurupa avenue and Garnet street, having crossed it a number of times on both roads; that on the day of the accident he was driving the White truck north on Garnet street; that when he was five hundred feet south of the intersection he was traveling between forty and forty-five miles an hour; that at that point he reduced the speed of the truck so that when he was about one hundred feet south of the intersection he was traveling between twenty and twenty-five miles an hour and continued to reduce his speed; that he saw the Ford traveling easterly on Jurupa avenue at a speed of between fifteen and twenty miles an hour; that he presumed the Ford would stop at the stop sign west of the intersection; that when the Ford reached the stop sign the truck was close to the south rail of the Union Pacific Railroad tracks; that the Ford did not stop, either before or at the stop sign, but proceeded into and across the intersection at about the same speed; that the two vehicles approached the intersection at about equal distances from its center; that he watched the Ford continuously after the two vehicles were about forty-five feet from the intersection; that the truck was then traveling between fifteen and twenty miles an hour; that when he reached the railroad tracks he realized for the first time that the Ford was not going to stop; that he then “got up” on his brakes, that is, he applied his foot brakes as hard as he could; that he attempted to turn the truck to his right but could not do so because of lack of space; that he got up on the brakes until the impact; that he was not going over five miles an hour when he entered the intersection; that the left front of the truck hit the right rear of the Ford; that the point of impact was about three feet east of the center line of Garnet street and about five feet south of the center line of Jurupa avenue; that when the truck stopped its front was slightly north of the center line of Jurupa avenue; that when the collision occurred the truck was headed north; that he did not sound his horn prior to the collision.

Clarence West, a traffic officer, arrived at the scene of the accident about ten minutes after it had happened. He found tire marks on the pavement apparently made by the Ford when it was struck by the truck. Baker, Clarence West and defendant Edward West fixed the point of impact at about the same distance south of the center line of Jurupa avenue, but Baker located it two or three feet further east than did defendant West. Traffic officer West examined the truck after the accident and found no damage to the braking system. He also drove the truck and found “what I would call fair brakes”.

Mrs. Nellie Cheney resided on Garnet street about two hundred feet south of the intersection. She was standing in her driveway in front of her house when the White truck passed going north. She observed its progress for forty or fifty feet and estimated its speed at about thirty miles an hour and testified that it was slowing down. She heard but did not see the crash. She immediately went to the scene of the accident and saw the truck at rest on the east half of Garnet street with its front about three feet north of the center line of Jurupa avenue.

Mrs. Beatrice Osborne also lived on Garnet street south of the intersection. She was standing with Mrs. Cheney when the White truck passed. She estimated its speed at about thirty miles an hour. She also went to the scene of the accident and thought that the truck had stopped with its front wheels three or four feet north of the center line of Jurupa avenue.

Charles Bartlett, a nine-year-old schoolboy, was standing in the driveway of his home situated near the northwest corner of the intersection. He saw the Ford on Jurupa avenue seventy-six and one-half feet west of the intersection (according to measurements made during the trial). He observed it traveling easterly up to the time of the collision. It made no stop. He did not see the truck until about the time of the impact.

The complaints alleged and the trial court found Baker guilty of wilful misconduct. In the pleadings it was alleged and in the findings it was found that to constitute this wilful misconduct “he wantonly drove said automobile into the said intersection of Jurupa Avenue and Garnet Street without regard to oncoming traffic passing over and along Garnet Street and failed, neglected, and omitted to stop said Ford coupe automobile at the stop sign on the westerly edge of said intersection on Jurupa Avenue and thereby proximately caused said Ford automobile to collide with that certain White truck automobile. *”

Thus we have a direct finding that the testimony of both Baker and Mrs. McKinley, that the Ford made the required boulevard stop, was false and was not worthy of belief. By necessary inference the trial court also found false and unworthy of belief Baker's testimony that when his Ford was partly across the west line of the pavement on Garnet street he looked to the south and saw the White truck between four and five hundred feet away approaching at a speed of between forty-five and fifty-five miles an hour. “ ‘Willful misconduct,’ within the meaning of this statute, may then be defined as intentionally doing something in the operation of a motor vehicle which should not be done or intentionally failing to do something which should be done under circumstances disclosing knowledge, express or to be implied, that an injury to a guest will be a probable result.” Meek v. Fowler, 3 Cal.2d 420, 45 P.2d 194, 197. No one could conclude, if this testimony by Baker were true, that he made injury to his guests a probable result by proceeding across the intersection even at five miles an hour under those circumstances, because Baker would have cleared the paved portion of Garnet street and would have reached a place of safety while the truck was about one hundred feet from him. Wilful misconduct cannot be predicated on such circumstances because an injury to a guest would not have been a probable result of such conduct.

Thus we find that Baker is a most discredited witness not only from contradictions in his own testimony and by the evidence of three disinterested and seemingly credible witnesses, but by the findings of the trial court who refused to believe, and found to be false, important portions of his testimony.

The only evidence in the record supporting the finding of negligence on the part of defendant West because of excessive speed is found in the testimony of Baker to the following effect: That when the rear of the Ford had crossed the center line of Garnet street he looked to his right and saw the truck about twenty feet or less away approaching at a speed of not less than forty-five miles an hour. This statement is in direct conflict with Baker's other testimony, to which we have just alluded, to the effect that but a few moments before he had seen the truck between four and five hundred feet distant from him. It is also contradicted by the evidence of other witnesses. It is strongly disputed by the admitted physical fact of the slight damage in the collision to the front of the truck. It is also strongly contradicted by the undisputed fact that the truck came to rest with its front just over the center line of Jurupa avenue. None of these facts could have been true had the truck been traveling that last twenty feet at anywhere near the speed described by Baker.

As we have seen, the only portion of Baker's evidence concerning the operations of the two vehicles, which the trial court seemed to believe, was that small part of it concerning the course and speed of the truck during its progress for twenty feet before the impact. Its progress was directly toward Baker. According to this testimony he had but twenty feet within which to observe its approach. At forty-five miles an hour this distance would have been covered in a fraction of a second. Even at the speed given by West the distance would have been traversed in slightly more than a second. At best Baker had but little time and but slight opportunity to observe and estimate the speed of the approaching truck even though he had devoted his entire time and attention to so doing.

Respondents in their brief argue the question of the prima facie speed limit of vehicles on Garnet street while traversing the intersection. Their complaints alleged the existence of the stop signs we have mentioned, and that defendant Baker failed to make a stop before entering Garnet street. Their entire case against Baker, as disclosed by the pleadings, the evidence and the findings, is based on the fact that the stop signs were legally placed and that Baker failed to observe them. Their cases were tried and the judgments rendered on that theory and they cannot desert and change that theory here for the first time. Lindenbaum v. Barbour, 213 Cal. 277, 2 P.2d 161.

Besides urging the speed of forty-five miles an hour by defendant West as negligence, supporting the judgments, respondents urge six other acts and conditions as additional negligence supporting the judgments.

They maintain that Baker entered the intersection first and from the left of defendant West and that it was negligence for West to fail to yield the right of way as required by section 550 of the Vehicle Code. The provisions of this section govern the respective rights of way at uncontrolled intersections. The right of way on a through highway at a controlled intersection is established by section 552 of the Vehicle Code. By that section Baker was required to stop at the stop sign and to “yield the right of way to other vehicles * which are approaching so closely on the through highway as to constitute an immediate hazard, *.” It is clear that under this section the White truck had the right of way over the Ford driven by Baker and that Baker was required to yield that right of way to West.

Respondents urge that West was negligent in failing to sound his horn as required by section 671 of the Vehicle Code and thus warn Baker of impending danger.

It is well settled that if West were not negligent, he had the right to presume that Baker would obey the law and would stop before entering the intersection and would yield the right of way. This Baker did not do. He failed to stop at the stop sign and failed to yield the right of way, thus creating a condition of sudden and imminent peril for both drivers. It is well settled that where one who is himself free from negligence, is placed in a position of sudden and imminent peril, he may be excused if he errs in judgment or omits a warning to another. Neff v. United Railroads of San Francisco, 188 Cal. 722, 207 P. 243; Lindley v. Southern Pac. Co., 18 Cal.App.2d 550, 64 P.2d 490; 19 Cal.Jur., p. 598, § 36, and cases cited. Thus, unless we find other evidence in the record supporting the finding of negligence on the part of West we cannot hold him negligent because he failed to sound a warning.

Respondents urge that West was negligent in exceeding the basic speed provided for vehicles traveling on Garnet street. This argument rests on the evidence of Baker that the truck was traveling at a speed of from forty-five to fifty-five miles an hour. We will return to the question of the weight to be given to this evidence when we dispose of the other specific charges of negligence made against West.

Respondents next urge that West was guilty of negligence per se in crossing the tracks of the Union Pacific Railroad, view of which was not clear and unobstructed, at a speed in excess of fifteen miles an hour in violation of the provisions of paragraph two of subdivision “a” of section 511 of the Vehicle Code.

The provisions of this paragraph are clearly for the protection of vehicles on a highway and trains on the intersecting tracks from the danger of colliding with each other. Other provisions of the same section govern the speed of vehicles traversing obstructed intersections of highways and are intended to protect such vehicles from the dangers of collision with each other. Here we are concerned with a collision between two motor vehicles traversing an obstructed intersection and not with a collision between a train and a motor vehicle. Further, if we assume that West was negligent in crossing the railroad tracks at a speed of more than fifteen miles an hour we cannot see how that in itself could have been a proximate cause of the collision.

Respondents further urge that West violated the provisions of paragraph four of subdivision “a” of section 511 of the Vehicle Code in traversing the intersection at a speed of more than fifteen miles an hour. This paragraph contains this exception to the fifteen miles an hour prima facie speed limit: “Except upon a through highway or at traffic-controlled intersections, in which event in a business or residence district the district speed shall apply and elsewhere the speed shall be thirty miles per hour.” As the intersection involved here was traffic-controlled and was outside of a business or residence district, the fifteen miles an hour prima facie speed limit would not apply.

Lastly, it is urged that the White truck was not equipped with lawful brakes as it was not stopped within a distance of 20.8 feet when traveling at a speed of fifteen miles an hour as required by section 670 of the Vehicle Code.

If we assume, without holding, that under the circumstances here disclosed the brakes on the truck were required to stop within a distance of 20.8 feet when proceeding at such speed, there is no evidence that they did not do so. The only evidence on that question was given by defendant West and it is not disputed. West testified that when the truck was about the same distance from the center of the intersection as the Ford, he realized the Ford was not going to stop and “got up on my brakes”, that is applied his foot brakes as hard as he could. The truck was stopped within a distance of between twenty-three and thirty feet.

It is well known that human reactions are not instantaneous; that it takes an appreciable space of time after seeing a danger before a person can act to avoid it. This is recognized in our law. Poncino v. Reid–Murdock & Co., 136 Cal.App. 223, 28 P.2d 932. It is also recognized here that the operation of brakes are not instantaneous; that it would take a little time for brakes to take hold after they are applied. Bagwill v. Pacific Electric R. Co., 90 Cal.App. 114, 265 P. 517. During the period elapsing between the time that West first realized that the Ford was not going to make the boulevard stop and the time the brakes took hold, the truck was moving towards the place where it came to rest and passed over a part of the thirty or less feet intervening. To conclude that the truck was not stopped within 20.8 feet after West applied the brakes would be based on mere speculation. An opposite conclusion would be more reasonable and more in accord with the evidence. A finding of negligence must be supported by some substantial evidence and cannot be based on speculation or surmise. Furthermore, officer West testified that the brakes on the truck were “fair brakes”. Fair brakes are not defective brakes.

We have already observed that in finding West guilty of negligence the trial court specifically found that such negligence consisted of failing “to immediately stop said White truck automobile at the intersection of Jurupa Avenue and Garnet Street and thereby caused said White truck to run into and collide with the Ford automobile. *” While it is factually true that West did not stop the truck, his negligence cannot be predicated on any such omission. There was no duty founded in any statute, nor arising from the facts, which required him to so stop.

We have now reached the point where it is obvious that the only evidence in the case which tends to support the finding of negligence on the part of West is that fragment of the testimony of Baker, that just before the impact he saw the truck twenty feet away from him and coming directly towards him at a speed of not less than forty-five miles an hour, the trial court having found, either expressly or by necessary inference, that all of Baker's testimony as to the other events immediately preceding the impact was false and untrue.

We are mindful of the firmly established rules that the trier of fact is the sole judge of the weight and sufficiency of the evidence and the credibility of the witness; that where there is a substantial conflict in the evidence, that conflict is addressed to the trier of fact and is no concern of an appellate court; that the trier of fact may accept part of the testimony of a witness as true and reject other parts as false. These rules are too well founded in the jurisprudence of our state to need citation of authority.

It is equally well settled that the conflict in the evidence must be real and substantial so that reasonable minds might differ upon its effect and find either way upon it. Houghton v. Loma Prieta Lumber Co., 152 Cal. 574, 93 P. 377; Wenban Estate, Inc., v. Hewlett, 193 Cal. 675, 227 P. 723; Gardiner v. Holcomb, 82 Cal.App. 342, 255 P. 523; Thoreau v. Industrial Acc. Comm., 120 Cal.App. 67, 7 P.2d 767; Humphry v. Safeway Stores Inc., 4 Cal.App.2d 589, 41 P.2d 208.

Speaking on this question, the Supreme Court in Field v. Shorb, 99 Cal. 661, at page 666, 34 P. 504, at page 505, said: “We are adverse to holding that a finding by a jury or trial court on an issue of fact is not warranted by the evidence, whatever we might think as to its preponderance, where there is presented a fair, reasonable ground for a difference of opinion, and where a conclusion either way could not be considered as the necessary result of the exercise of an unsound judgment. But where the great current of the evidence is against the verdict, and we cannot escape the conviction that it is wrong, we should not be deterred from setting it aside by the contention that one or two general statements or assertions of one or two witnesses bring the case within the rule which governs in cases where there is a material ‘conflict of evidence.’ ”

In Barton v. McDermott, 108 Cal.App. 372, 291 P. 591, 594, it was said:

“It was said in Gardiner v. Holcomb, 82 Cal.App. 342, 350, 255 P. 523, 526:

“ ‘On the question of the conclusiveness of the findings of the trial court we may concede that the rule of law governing appellate procedure precludes this court from making further inquiry than to ascertain if there is any evidence of a substantial character, and not inherently weak or improbable, which supports the finding, and, if such be disclosed, the finding should stand irrespective of what evidence there might be opposed to the finding.

“ ‘However, without regard to the qualifications of the rule, but accepting it in all its strength, there is still the necessity that there be some support for the finding, and that, as against the positive and direct evidence of a fact, a mere conclusion or general statement will not serve to meet the definition of substantial or any evidence.’ *

“We do not hesitate, in these circumstances, to say that the supposed admissions are too insubstantial as evidence to support the finding.”

As we have observed a number of times, the trial court found the testimony of Baker false in several of its most important particulars. It is a truism that the testimony of a witness who has deliberately sworn falsely to some material facts is to be distrusted. The testimony of Baker as to the speed of the truck during the last twenty feet of its progress was flatly contradicted. His opportunity and time for observation and estimation of such speed was so poor as to almost constitute no opportunity at all. This portion of his testimony was disputed by the physical facts which demonstrated that he was at least badly mistaken if not deliberately false in this portion of his testimony. Under these circumstances we feel justified in concluding that this testimony by Baker was a mere assertion of facts and was too unsubstantial to create any real conflict in the evidence.

As defendant West was himself free from negligence it follows that he had the right to presume that Baker would stop at the stop sign, would yield the right of way and would not proceed into the intersection until he could do so without creating a traffic hazard. Sec. 552, Vehicle Code; Billig v. Southern Pac. Co., 192 Cal. 357, 219 P. 992; Harris v. Johnson, 174 Cal. 55, 161 P. 1155, L.R.A.1917C, 477, Ann.Cas.1918E, 560; Gornstein v. Priver, 64 Cal.App. 249, 221 P. 396; Hanson v. Cordoza, 106 Cal.App. 500, 290 P. 62. Thus, we are satisfied from a careful consideration of all of the record that there is no substantial evidence in the record to support the judgment against appellants, based as it is on the supposed negligence of West. The actions of defendant West, prior to the collision, were those which might be expected of a reasonably prudent person under similar circumstances. He had the right to expect that Baker would obey the law and yield the right of way to which he (West) was entitled. As soon as he realized that Baker intended to attempt to beat him across the intersection he was confronted with a situation of sudden and imminent peril. He did all that a prudent and careful person, when confronted with such peril, might have been expected to do under the circumstances. That he lacked sufficient space in which to stop his truck was not his fault, but Baker's. The proximate cause of the accident was the wilful misconduct of Baker without any concurring negligence on the part of West. See Sanford v. Grady, 1 Cal.App.2d 365, 36 P.2d 652, 37 P.2d 475.

As the finding of negligence on the part of West lacks necessary evidentiary support and the judgment against appellants must be reversed it is unnecessary to consider the other grounds urged by them for reversal of the judgment.

Those portions of the judgments which are against appellants are reversed.

MARKS, Justice.

We concur: BARNARD, P.J.; GRIFFIN, J.