Salvetti

This is an appeal by defendant Emerson Byrd from an order granting plaintiffs Salvetti a new trial.

Plaintiffs brought this action to recover damages for personal injuries and property damage incurred in an automobile collision allegedly caused by the negligence of defendant. The defendant answered, denying the material allegations of the complaint and raising the affirmative defense of contributory negligence, which defense was subsequently abandoned during the course of the trial.

The evidence is substantially without conflict. The accident occurred Ocotber 8, 1960, at 4 p.m., on U. S. Highway 101 in San Rafael. This portion of Highway 101 consists of four lanes, with a divider strip separating the two southbound lanes from the two northbound lanes. Immediately prior to the accident, the defendant Emerson Byrd was driving a newly acquired Volkswagen in a southerly direction in the right-hand lane of Highway 101. While proceeding at a speed of approximately 55 or 60 miles per hour, the defendant gradually overtook two vehicles which were ahead of him in the same lane. The defendant described the rear vehicle as a Buiek. He testified that a panel truck was approximately 50 to 75…