Alquero v. Duenas
| Decision Date | 14 June 1963 |
| Docket Number | No. 17971.,17971. |
| Citation | 319 F.2d 40 |
| Parties | Gil L. ALQUERO and Joyce Alquero, Appellants, v. Augustin B. DUENAS, Rosita D. Duenas and Capital Insurance and Surety Company, a foreign corporation, Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Turner, Barrett & Ferenz, Howard G. Trapp, and W. Scott Barrett, Agana, Guam, and San Francisco, Cal., for appellant.
E. R. Crain, Agana, Guam, Schofield, Hanson, Bridgett, Marcus & Jenkins, Thomas M. Jenkins, and Edward L. G. Aguon, San Francisco, Cal., for appellee.
Before CHAMBERS, MAGRUDER and HAMLEY, Circuit Judges.
Gil L. Alquero on a motor scooter collided with the Duenas family car driven by the wife, Rosita. The collision happened on May 1, 1961, on a paved country road in Guam running from the village of Sinajana to the village of Afame. The accident occurred as the two vehicles approaching each other met at the top of a hill. The scene was in rolling hill country and there was considerable tropical growth on both sides of the road. The car and the scooter had been climbing (the car more so) to reach the top of the hill. The paved road surface was apparently about 13 feet six inches wide at the point of impact. At some points in the vicinity the pavement was as much as 15 feet wide. At no point is it indicated it was less than 13 feet. The pictures of the scene would indicate gravel on either side about level with the road.
Mrs. Duenas, a short woman, was at the wheel of a Pontiac sedan six feet four inches wide. There can be little doubt that her visibility of any oncoming traffic from the other side of the hill was somewhat restricted as she sat at the wheel due to the angle of the hill and her shortness. The greatest width of the scooter was at the handle bars: 28 inches. It would appear that neither saw the other for more than the instant before the crash, too late to do anything to avoid the collision.
The impact seems to have begun head-on, or nearly so, the left side of the handle bars and body of the scooter coming in contact with the left front light, or thereabouts, of the Pontiac. Then the scooter and the car seem to have caromed into a left hand side swipe for both. And Alquero's left leg and left arm were rather badly mangled — quite a natural consequence of the particular impact. If the progress described nine months later at the trial continued for six months more (the further time estimated by the doctor as necessary), Alquero has made a splendid recovery.
The Alqueros sued Mrs. Duenas and her husband Augustin, as well as the insurance carrier for the Duenases. Alquero asked for damages for the injury, loss of earnings, medical and hospital expenses, and the damage to his scooter. Also, Mrs. Alquero asked for $5,000.00 for loss of consortium. The Duenases counterclaimed for the damage to their Pontiac. Each driver said the other was negligent. The jury awarded nothing to anyone but the issue of Mrs. Alquero's consortium was not permitted to go to the jury. It is probable that the jury charged both drivers with negligence, but it is possible that the jury thought the incident was a pure accident for which no one was to blame. (No one has argued the latter proposition.)
Using the width of the paved road as 13 feet six inches, it is obvious that there was plenty of room on the paved road for both vehicles to meet and pass each other without event and without having to drive off the pavement.
A highway patrolman estimated the point of impact to have been from two to three feet north of the center line of the pavement. (This we get by the place on the map of the scene where he finally fixed the point of impact.)1 Thus, if Alquero was entitled to half of the paved road, Mrs. Duenas was over on his side. Alquero claimed that as he was proceeding westerly the right side of his scooter was about one foot in from his right edge of the pavement. All this was a question of fact.
On their appeal the Alqueros made four points. The first one is a pleading point. We shall give it little space. Literally, in a way, the appellees-defendants by general denial contradicted something they had already admitted, as well as denying some things they intended to deny. A motion to strike was denied by the court. While it might have been better if the defendants had tidied up their answer, there is no showing of bad faith or that the basic issues were not clear. Further, there is no showing that the defendant suffered any burden of time or expense except the time counsel spent tilting with the answer by way of a motion to strike. The pretrial order did not supersede the pleadings but it makes clear that both sides clearly understood the issues. Cf. Fredrick v. United States, 9 Cir., 163 F.2d 536, 549; Peck v. Shell Oil Co., 9 Cir., 142 F.2d 141, 144.
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Com. v. Haley
...exclude it without waiting for an objection by counsel. Chicago & N.W. Ry. v. Kelly, 84 F.2d 569, 572--573 (8th Cir.). Alquero v. Duenas, 319 F.2d 40, 42 (9th Cir.). O'Kelley-Eccles Co. v. State, 160 Cal.App.2d 60, 65, 324 P.2d 683. Greer v. Whittington, 251 N.C. 630, 634--635, 111 S.E.2d '......
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