Heintz

This is an action for damages for the death of Robert Heintz who was killed about 3:45 a.m. on November 11, 1941, when an automobile being driven by him collided with a loaded fruit car standing on one of the main streets of Sanger. He was 25 years old, and married. His wife was killed in the same accident and this action was brought by his parents as his sole heirs at law.

The accident happened a short distance south of the intersection of M Street and Eleventh Street, in Sanger. M Street is a continuation of the main highway into the city and runs north and south. It is 59 feet wide from curb to curb north of Eleventh Street and 56 feet wide from curb to curb south of Eleventh Street. It was paved for its entire width, but the pavement of a strip 20 feet wide along the center of the street was of a different color and substance from that on either side of that strip. At the time in question there was no white line down the center of this street. South of Eleventh Street there were some sycamore trees on each side of M Street, the foliage being red or brown or yellow at the time. M Street came to a dead end about a block and a half south of Eleventh Street and at that end there…

I dissent. I agree with the majority opinion, if we accept the testimony of plaintiffs in its most favorable light, that there is sufficient evidence shown to establish negligence on the part of defendants in leaving, unattended and unlighted, a box car without warnings parked diagonally across and in the middle of a paved and fairly well traveled street in the nighttime under the circumstances described. The conclusion that defendants were negligent is supported by the decision in the case of Peri v. Los Angeles Junction Ry. Co., 22 Cal.2d 111 [ 137 P.2d 441 ], The question of defendants’ negligence, under the evidence here presented, however, is one of fact to be determined by the jury, and not one of law.

I also agree with the' main opinion that there is substantial evidence to indicate that the deceased driver was guilty of negligence in many respects, and if the jury determined that such negligence was a proximate cause of his death, plaintiffs would be barred from a recovery. This, however, is not the question here presented. The question is whether the evidence conclusively shows that the driver was guilty of contributory negligence as a matter of law, which negligence…

This is an action for damages for the death of Robert Heintz who was killed about 3:45 a.m. on November 11, 1941, when an automobile being driven by him collided with a loaded fruit car standing on one of the main streets of Sanger. He was 25 years old, and married. His wife was killed in the same accident and this action was brought by his parents as his sole heirs at law.

The accident happened a short distance south of the intersection of M Street and Eleventh Street, in Sanger. M Street is a continuation of the main highway into the city and runs north and south. It is 59 feet wide from curb to curb north of Eleventh Street and 56 feet wide from curb to curb south of Eleventh Street. It was paved for its entire width, but the pavement of a strip 20 feet wide along the center of the street was of a different color and substance from that on either side of that strip. At the time in question there was no white line down the center of this street. South of Eleventh Street there were some sycamore trees on each side of M Street, the foliage being red or brown or yellow at the time. M Street came to a dead end about a block and a half south of Eleventh Street and at…