Brewer

This is an appeal from a judgment for damages to the plaintiff’s automobile sustained by coming in contact with an electric power pole Avhen his ear was crowded from the higlrway by the passing of defendant Benton’s machine. A reversal of the judgment is sought on the sole ground that the trial court failed to adopt findings upon the issue of contributory negligence.

The plaintiff was driving his automobile along the highAvay from Sacramento to Rio Linda. It was a narrow roadway. The paved portion Avas but ten feet in width with a five or six foot shoulder on either side. The plaintiff was traveling about thirty miles an hour. The defendant Benton was driving his Studcbaker car which approached from behind the plaintiff’s machine. After first passing an intervening Ford coupe, the defendant claims to have sounded his horn and then attempted to pass the plaintiff’s car by traveling along the extreme left-hand portion of the highway Avith his automobile running almost entirely on the dirt shoulder of the road. He admits traveling thirty-six or thirty-eight miles an hour. Both the plaintiff and his companion Avho sat by his side testified that the defendant did not sound his horn…

The trial court made the following finding : “ . . . that at said time and place defendant W. A. Benton so carelessly and negligently drove and operated said automobile in attempting to pass the car of plaintiff Arthur E. Brewer as to cause the car of said W. A. Benton to cross said highway at said point at an angle and come close to and immediately in front of the car being driven by plaintiff Arthur E. Brewer; that as a result of said careless and negligent driving of defendant W. A. Benton at said time and place it became necessary for plaintiff Arthur E. Brewer to leave said highway, and that his car did leave said highway and collided with a telephone pole and a power line pole; that as a direct and proximate result of said negligence and carelessness of defendant W. A. Benton in driving and operating his- said automobile at said time and place, the automobile of plaintiff Arthur E. Brewer was damaged. ’ ’

In my view the above finding precludes by way of demonstration any other conclusion than the one that the plaintiff was guiltless of contributory negligence. This being so, it ■was not necessary to declare in the terms of a conclusion that the plaintiff was not guilty of…