THOMSON ET AL v. BAYLESS ET AL

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District Court of Appeal, Second District, Division 1, California.

THOMSON ET AL. v. BAYLESS ET AL.

Civ. No. 14204.

Decided: December 22, 1943

Reginald I. Bauder, of Los Angeles, for appellants. Arthur C. Miller, of San Francisco, and Lee A. Solomon, of Los Angeles, for respondents.

Defendants appeal from the judgment following a jury verdict in an action for damages resulting from an automobile accident.

The record reveals that the action arose out of an accident on San Fernando Road about five miles from San Fernando, when the automobile in which plaintiff Culver E. Thomson was riding as a guest collided with the rear of defendants' truck and trailer, which was parked twelve inches from the right hand curb of the highway. The driver of the truck testified in substance that he had dinner in Burbank and that it was his custom to take a nap before continuing over the ridge route to Bakers–field; that he stopped his truck, got out and checked the tires and lights; that all of the lights were lighted and that he then returned to the cab and went to sleep; that at the point where the accident occurred the highway is divided by white lines with a double line in the center; that there is an 8 inch curb along the right side of the highway; that the lane next to the curb is 14 feet 8 inches wide, the next lane 10 feet 4 inches wide; that the lane next to the double line on the opposite side is also 10 feet 4 inches wide and that the outside lane on the opposite side is 19 feet wide with a 10 foot gravel shoulder adjacent; that the truck and trailer were 8 feet wide. The evidence reveals that the accident occurred January 13th about 10 P.M. and that the weather was clear.

It is appellants' contention that, as a matter of law, defendants were not shown to have been guilty of any negligence in the management and operation of the truck and trailer and that the negligence of the driver of the car in which plaintiff was riding was the sole proximate cause of the accident.

Respondents, on the other hand, contend that defendant driver was “so heedless and negligent that he failed to even consider driving his equipment off, to the left shoulder of the highway, but contrary to section 586 of the Vehicle Code [St.1935, p. 191] chose a place, dangerous to travelers lawfully upon the highway.” Also, quoting from respondents' brief: “The defendant driver had established personal habits that made it individually desirable that he park his truck at a certain spot on the main traveled highway so that he might sleep. His act was done with knowledge and deliberation and he does not even offer as an excuse that he was overcome by unusual fatigue. He expected to seek repose at a given time and place where certainly a reasonable, ordinary, prudent person would not have deliberately parked, if not for the safety of the general public having an equal right to use the highway, certainly out of consideration for his own safety. That such act was negligence as a matter of law proximately contributing to the occurrence of the accident is well settled by many authorities. * * * The defendant driver was therefore either so heedless and negligent that he failed to even consider driving his equipment off, to the left shoulder of the highway, but contrary to section 586 of the Vehicle Code chose a place, dangerous to travelers lawfully upon the highway.”

In support of the above–quoted contention as to the law, respondents cite three California decisions, viz: Inai v. Ede, 42 Cal.App.2d 521, 109 P.2d 400; Scoville v. Keglor, 27 Cal.App.2d 17, at page 31, 80 P.2d 162, and Hunton v. California Portland Cement Co., 50 Cal.App.2d 684, at page 695, 123 P.2d 947. They fall far short of sustaining respondents' contention. A reading of the above–mentioned decisions reveals the facts and circumstances in each to be so different from the facts herein that the language employed in such decisions with regard to the facts there considered, does not apply, nor may it properly be applied to the evidence in the within action.

There is no material conflict in the evidence. In the circumstances revealed by the record the action of the truck driver in parking the truck along the curb at the point where the accident occurred was lawful; such act violated no provision of the California Vehicle Code. Nor does the evidence show any other act or omission amounting to negligence. And no negligence having been proved, the evidence is insufficient to support the judgment.

Respondents, in emphasizing the fact that the truck driver stopped and parked the truck to take a nap, overlook the logical proposition that if parking the truck, in the circumstances, was lawful, then the motive becomes immaterial and the argument based on such incident is beside the issue.

For the foregoing reasons, the judgment is reversed.

DORAN, Justice.

YORK, P. J., and WHITE, J., concur.