Gigliotti v. Nunes
| Decision Date | 18 October 1954 |
| Citation | 275 P.2d 136 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Nadine GIGLIOTTI, a minor, etc., et al., Plaintiff and Appellant, v. Joseph Ernest NUNES, Defendant and Respondent. Arthur MATTS, a minor, etc., et al., Plaintiffs and Appellants, v. Joseph Ernest NUNES, Defendant and Respondent. Joseph Ernest NUNES, Cross-Complainant and Respondent, v. Rhoda GIGLIOTTI, Cross-Defendant and Appellant. Civ. 15821, 15820. |
James F. Boccardo, San Jose, Edward J. Niland, San Jose, of counsel, for appellants.
Campbell, Custer, Warburton & Briton, Frank L. Custer, San Jose, W. R. Dunn, Burlingame, of counsel, for respondent.
Plaintiff and cross-defendant appeal from judgment entered against plaintiffs and in favor of defendant and cross-complainant after jury verdict in two negligence actions which were consolidated for trial. All causes of action arose out of a collision on November 7, 1947 between an automobile and a truck. All of the plaintiffs who were minors at the time, were riding in the automobile as guest passengers. Defendant and cross-complainant, Joseph Nunes, owned and operated the truck.
Nunes' answer denied negligence generally, and set up the affirmative defenses of contributory negligence, assumption of risk, imputed negligence on the part of the driver of the automobile, unavoidable accident, res judicata and estoppel. Plaintiffs' motion to strike the latter two defenses was granted. Nunes filed a cross-complaint for damages to his truck against the minor plaintiffs in both actions and also brought in as an additional cross-defendant, Rhoda Gigliotti, mother of the plaintiffs Nadine and Jean Gigliotti. The cross-complaint alleged that the driver of the automobile, Leonard Walters, had negligently operated said vehicle while acting as the servant, agent and employee of the cross-defendants.
Motions for nonsuit as to the minor cross-defendants were granted at the conclusion of the trial. The motions of Rhoda Gigliotti for nonsuit and directed verdict on the cross-complaint were denied, as was her motion for permission to file an amendment to her answer to the cross-complaint to set up the failure of Nunes to file a cross-complaint in a previous action arising out of the same accident, which had been previously brought against him by Rhoda Gigliotti.
The verdict of the jury was in favor of defendant and against plaintiffs, and in favor of Nunes on his cross-complaint against Rhoda Gigliotti in the sum of $300. Motions of plaintiffs and cross-defendant Rhoda Gigliotti for a new trial, made upon all the statutory grounds were denied.
The accident giving rise to these suits, occurred at about 3 p. m. on November 7, 1947, in San Jose, at the intersection of Bayshore Highway and Berryessa Road. The Bayshore at this point runs north and south and is divided into three lanes, each eleven feet wide. On each side is an asphalt shoulder nine feet in width. Berryessa Road crosses Bayshore at about a 45 degree angle, running from southeast to northwest, and is divided into two lanes, each nine feet wide. Berryessa Road widens out into a curve on each side where it joins the shoulders of Bayshore Highway. Approximately forty feet south of the center of the intersection, railroad tracks cross Bayshore at an angle, running parallel to Berryessa Road. On each side of the tracks, about ten or twelve feet distant therefrom, and parallel thereto, are double white lines extending across the center and right lanes of each approach to the crossing. (Exhibit C).
Respondent Nunes engaged in the business of transporting livestock. He owned and operated a Peterbilt truck which was about 32 feet in length, and attached to the truck by a tie-bar was a trailer, 23 feet ten inches in length equipped with cattle racks. The overall length of this equipment was 59 feet, 10 inches, and it weighed more than 19,500 pounds. Nunes' home and shop was located on the east side of Bayshore about 700 feet north of the intersection of that highway with Berryessa Road. At the time of the accident respondent was on his way from his home to the Kaufman Milling Company which was located on Berryessa Road, about one mile east of Bayshore.
The car in which plaintiffs and cross-defendant Mrs. Rhoda Gigliotti were riding was a 1946 two door Dodge sedan, to which was attached an empty horse trailer. The party had stopped at the home of one of plaintiffs which was just off Bayshore Highway and about a mile and a half south of Berryessa Road, and were on their way to the Gigliotti ranch in Milpitas when the accident happened.
At the time of the accident Leonard Walters was driving the Dodge, Mrs. Gigliotti was in the front seat beside him, and seated next to her was plaintiff Arthur Matts. The three girls were in the back seat. As a result of the collision Leonard Walters was killed, and Mrs. Gigliotti and the minor plaintiffs sustained several personal injuries.
Respondent testified that he was in the center lane as he approached the Berryessa intersection, that a 'good block' therefrom he put the mechanical arm signal out for a left turn and kept it there. He was driving at between 12 to 15 miles per hour, and slowed down before reaching the intersection. He saw two groups of automobiles approaching from the south, the first consisting of 2 or 3 cars traveling at 'ordinary' speed, 40 to 50 miles per hour, and they were an 'ordinary driving distance' apart. The second group consisted of 3 cars, the first of which was 700 to 800 feet behind the last car of the first group. He paid no attention to the speed of the cars in the second group. He was 200 or 300 feet from the intersection when the first car of the first group reached it. He stopped or nearly stopped when he reached the intersection just as the last car of the first group passed through the intersection. The first car of the second group was about 800 feet from the intersection. He looked in his rear view mirror, then put the truck in gear to begin the left turn. Just before he started the left turn he saw the Dodge and trailer come out from behind the first two northbound cars and pass them in the middle lane. At a previous trial he had testified that he had already made part of his turn before he looked to the right again. The Dodge was 600 or 700 feet from Berryessa when it passed the two cars. It pulled back into the east lane. When he was in the center of the east lane he saw the Dodge about 300 to 350 feet away and estimated its speed at 65 miles per hour. He started to apply his brakes, knowing he could not get out of the way in time. The Dodge did not reduce its speed, but at about the railroad tracks swerved to the right in an attempt to go in front of the truck, but the vehicles collided when the front of the truck was about 2 feet east of the Bayshore pavement. He did not know if his truck was moving or stopped at the time of impact. If moving, it could not have been at more than 3 miles per hour. He had traveled about 8 feet from the time he had observed the Dodge 300 to 350 feet distant. The truck had traveled from 12 to 15 feet at 3 miles per hour from the point where it began the left turn into the east lane to the point of impact. The left front of the Dodge got under the truck's bumper, and moved the truck a little distance. The vehicles came to rest with about three-quarters of the left side of the truck's bumper imbedded in the car. The truck was moved 3 or 4 feet by the impact. Respondent denied that he had told anyone that he had never seen the Dodge.
The witness Fowler, who testified for respondent, stated that he was at the stop sign on Berryessa at the east side of Bayshore when he saw respondent's truck and trailer approaching. Fowler was an employee of Kaufman Milling Company, and had known respondent for some time. Both Fowler and his wife testified that the left turn signaling device was straight out indicating a left turn. The signaling device was pointing downward after the accident. (Plaintiff's Ex. 12) Fowler saw the Dodge first about 500 feet south going at about 55 miles per hour and did not see any cars go through the intersection before the Dodge. The truck had been traveling 10 to 12 miles per hour and started to turn without any change in speed. The Dodge was then 150 to 200 feet from the intersection still traveling at the same speed. As soon as the truck started to turn Fowler knew the accident was going to happen because the Dodge was so close that respondent could not get his 60 foot truck and trailer across in front of it.
Officer Carmichael of the highway patrol testified that Fowler told him at the scene of the accident that he could give him no information because he had been watching the truck make its turn and had not seen the Dodge.
Clifford Whittaker testified for plaintiffs that he was driving a truck easterly on Berryessa Road toward Bayshore and first saw respondent's truck north of the intersection traveling at 20 to 25 miles per hour. It slowed down as it approached the intersection, and two northbound cars passed through the intersection as the truck continued slowing down. Just after the second car passed, the truck began to turn right in front of the Dodge. The Dodge was near the railroad tracks about 80 feet south of the intersection when the truck began the turn, and was moving at between 40 and 45 miles per hour. It veered to the right when the truck began to turn and traveled about 64 feet to the point of impact. Its speed was then between 35 and 40 miles per hour. The left front bumper of the truck hit the left front side of the car and moved the car sideways 4 or 5 feet. The Dodge left tire marks 4 or 5 feet in length extending easterly from the point of impact. It had left skid marks behind it to the south. The witness said that he asked respondent why he pulled out in front of the Dodge, and he replied that he didn't see it.
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