Monroe

This case arose from a collision between a truck driven by the defendant Switzer and owned by the defendant Pauley Oil Company, a corporation, and plaintiff’s Studebaker automobile. Dismissal was entered as against all of the defendants except Pauley Oil Company. The action was tried by the court without a jury and judgment rendered that plaintiff take nothing and that the defendant corporation recover its costs.

The facts are as follows: The truck was traveling easterly on Whittier Boulevard, a thoroughfare of Los Angeles County, while the Studebaker, a passenger car, was proceeding in the opposite direction upon the same road. The machines collided west of the westerly line of Guirado Road, an intersecting street, and north of the northerly line of the traveled thoroughfare. Both cars nosed together northerly and cut three or four feet into the porch of a small grocery-store at a point 19 feet west of the westerly pavement line of the intersecting street and 21 feet north of the northerly pavement line of the thoroughfare. There was testimony that the automobile was traveling 12 or 14 miles an hour and the truck between 20 and 25 miles per hour, and that the truck driver gave a…

I concur in all that is said in the foregoing opinion and in the conclusion reached by it, but I think the conduct of the trial judge, as shown by his remarks in dealing with the motion for a nonsuit, should not pass unnoticed. As he felt a doubt upon the question as to the disposition of the motion, he should have denied it (Bush v. Weed Lumber Co., 55 Cal. App. 588 [ 204 Pac. 25 ]). Instead of taking that course, however, he invited respondent to rest its case upon the evidence presented by appellant so that he might weigh what he considered to be conflicting evidence, a thing he could not do in considering the motion. Counsel quite naturally accepted this unusual invitation and withdrew the motion, with the result that, while a serious accident had occurred, a young woman had been badly injured, an automobile had been demolished, the plaintiff in an action to recover for the loss of the car was in moral effect denied a trial on the merits. He was also denied compensation for an admitted loss, one for which it was decided that his daughter, the driver of the car, was not responsible, a strange outcome, indeed.

In disposing of cases upon appeal it is usually necessary for courts…