Opinion
Rehearing granted Oct. 16, 1929
Appeal from Superior Court, Fresno County; Charles R. Barnard, Judge.
Action by Nora De Wees against Dorothy Kuntz, also known as Dorothy Nell De Wees. Judgment for plaintiff, and defendant appeals. Affirmed.
COUNSEL
W.I. Gilbert, of Los Angeles, and Lasher B. Gallagher, of San Francisco, for appellant.
M.F. McCormick, of Fresno, for respondent.
OPINION
BURROUGHS, Justice pro tem.
This is an action for damages for personal injuries alleged to have been suffered by the plaintiff in an automobile accident while riding as the invited guest of her daughter, who is the defendant. The cause was tried by the court without a jury, and judgment was rendered in favor of the plaintiff in the sum of $2,070, and the defendant appeals therefrom.
Appellant specifies two grounds of alleged error, either one of which, it is contended, calls for a reversal of the judgment.
It is first claimed that the evidence is insufficient to support the court’s finding that the injuries suffered by plaintiff were caused by the negligence of the appellant. The second claim is that even though it is held that the defendant was guilty of negligence, the plaintiff was guilty of contributory negligence, and the court’s finding to the contrary does not find support in the evidence.
The evidence discloses that both parties to the action were returning from a rodeo being held near a place called Squaw Valley, to their home in the city of Fresno. The defendant was the owner of and operating the automobile, a Chrysler roadster. The plaintiff occupied the seat to the right of the defendant. The road was an ordinary, unpaved, mountain road, and where the accident occurred the traveled portion thereof was 12 feet wide. The defendant was familiar with the road, having traveled over it many times. The only account of the accident given at the trial was the testimony of the defendant. This showed that she was traveling downgrade, and on rounding a curve in the road she saw, at a distance of about 25 or 30 feet from her, an automobile which was parked on the inner side of the road and was facing up hill. She was on the outer and right-hand side of the road descending and proceeding at about 10 or 15 miles an hour. She had ample room to pass the parked car. Almost immediately on rounding the curve she saw another car, behind the parked car, which was approaching on its right-hand side of the road. It turned to pass the parked car and thereby entered the defendant’s side of the road. The defendant did not stop her car, which in one part of her testimony she said she could have done, but turned to her right to allow the approaching car to pass between her car and the parked car, with the result that the wheels on the right side of her car went off the road and the car tipped over on its side and inflicted serious injuries on the person of the plaintiff.
As illuminative of the frame of mind of the defendant upon the subject of her ability to pass the two cars, her answer to the following question is pertinent: "Q. Isn’t this about the situation there as it existed when you saw these two cars, the one coming up passing the standing car? You thought that by turning to the right the other car could pass you on your left? A. Yes."
It thus appears that the defendant made no effort to stop her car before reaching the on-coming car. Had she done so, it appears that she could have avoided the accident.
It is claimed by appellant that because section 136 of the California Vehicle Act (St.1923, p. 561) forbids the parking of an automobile upon a public highway unattended, unless there is a clear and unobstructed width of not less than 15 feet upon the main traveled portion of the highway between the car and the unoccupied portion of the highway, this defendant had a right to assume there was sufficient room for the passing of both cars opposite the parked car, and that under the rule in Medlin v. Spazier, 23 Cal.App. 245, 137 P. 1078, a person has a right to presume that every other person has obeyed the law, and that therefore the defendant had a right to believe that there was 15 feet between the parked car and the outer edge of the highway. Upon this subject we deem it sufficient to say that defendant was familiar with the road, having traveled it many times, and according to her own testimony she had a full view of the road, and she also believed she had plenty of room to pass. We therefore consider the point is without merit.
It is also claimed by appellant that the proximate cause of the accident was the fault of the driver of the parked car in leaving it parked at a point where there was not the required space between it and the outer edge of the highway, and that it was also the fault of the driver of the approaching car in not waiting for the defendant to pass the parked car. However, it has been held that to impose liability upon the defendant it is not necessary that her negligence alone should have been the cause of the accident. Griffith v. Oak Ridge Oil Co., 190 Cal. 389, 212 P. 913; Merrill v. Los Angeles, etc., Co., 158 Cal. 499, 111 P. 534, 139 Am.St.Rep. 134; Smith v. San Joaquin Light & Power Co., 59 Cal.App. 647, 211 P. 843. It has also been held, and is the law of this state, that where an injury results from two separate and distinct acts of negligence by different persons operating and concurring simultaneously and concurrently, both are the proximate cause and recovery may be had against either or both of the responsible persons. Dow v. Sunset Tel. & Tel. Co., 162 Cal. 136, 121 P. 379; Merrill v. Los Angeles Gas & Elec. Co., supra.
It is the next contention of appellant that plaintiff was guilty of contributory negligence, in this, that the evidence shows that the atmosphere was so filled with dust as to render it impossible to see for any great distance ahead of the car, and that it was the duty of the plaintiff to have refused to ride with the defendant under the circumstances, and that as a matter of law it was contributory negligence for the plaintiff to ride in the car under such circumstances. It appears that on the day of the accident a rodeo was being held at Squaw Valley, and many other persons had attended, and there was an unusual number of cars passing back and forth over the road, and that it was dusty. However, it appears from the evidence of the defendant herself that immediately upon rounding the curve, she saw the other cars and that she believed that she had plenty of room to turn to the right and let the approaching car pass her, and there is no claim made by her that the dust obstructed her view of the road to such an extent that she could not see the car and the road ahead of her.
This evidence refutes defendant’s claims that plaintiff was, as a matter of law, guilty of contributory negligence. We are of opinion that the evidence is sufficient to sustain the findings.
The judgment is affirmed.
We concur: NOURSE, Acting P.J.; STURTEVANT, J.