PFINGSTEN v. WESTENHAVER

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District Court of Appeal, Second District, Division 2, California.

PFINGSTEN v. WESTENHAVER.*

Civ. 18638.

Decided: December 20, 1951

Early, Maslach, Foran & Tyler, by George Maslach, Los Angeles (Donald J. Pierr and John B. Connolly, Los Angeles, of counsel), for appellant. Daniel E. Farr, W. T. Stockman and Richard P. Roe, all of Los Angeles, for respondent.

This suit is for property damage resulting from a collision between a truck-trailer unit owned and driven by plaintiff and an automobile driven by either Maidie Blanche Adams or her son, Robert Cook, both of whom were killed in the accident. The action was brought against the administrator of the estate of Maidie Blanche Adams. The jury having rendered a verdict in favor of plaintiff, defendant appeals from the judgment thereon.

Appellant contends that there is no substantial evidence of negligence on the part of the driver of the automobile.

The accident occurred at about 6:00 or 6:30 in the evening of December 31, 1948, on U. S. Highway 75 in Sioux County, Iowa, approximately a mile and a half south of the town of Maurice, at or near the north end of a bridge which forms a part of the highway.

The only evidence as to the circumstances and manner in which the collision occurred is contained in the testimony of plaintiff's witness, John De Groote, who testified that just prior to the accident he was driving south on Highway 75 when the automobile of Mrs. Adams bearing California license plates passed him going ‘around 40, 45, maybe 50 miles an hour.’ At that time he was about three fourths of a mile north of the point of collision, driving at 38 miles an hour. After the Adams car passed him he ‘slowed down just a little because our road was icy.’ At the time of collision he was about 400 or 500 feet north of the accident, he did not apply his brakes for fear the icy ridge in the road would cause him to hit the bridge. Both highway and bridge were twenty feet wide. Although the truck was travelling north, after the collision it was on the west side of the pavement, while the automobile had come to a stop on the east side. The car had been struck on the right side just behind the motor.

Mr. De Groote testified that he saw the lights of the truck and the automobile respectively on the ‘right sides of their highway.’ Then he saw the red brake lights of the California vehicle and the beams of the bridge lighted by headlights, and in a second ‘just a dark cloud.’ Whether those lights were ‘on either the truck or the car at the time of the impact,’ he could not see. He was ‘not able to see the actual collision at all * * *. Just the dust cloud.’ In so far as he observed the Adams car it was on the west half of the pavement ‘until they used their brake lights.’

‘Q. All you saw of the collision was a cloud of dust? A. That is correct.’

While such testimony gives rise to interesting probabilities and strained speculations, it supplies no legal evidence of negligence on the part of Mrs. Adams or her son. There is no proof to justify the finding of negligence.

Inasmuch as the judgment must be reversed because of the insufficiency of the evidence, it is not necessary or discuss the other points raised by defendant.

Judgment reversed with instructions to enter judgment for defendant.

MOORE, Presiding Judge.

McCOMB, J., concurs.