Gilmore v. Caswell

PLUMMER, J. Action by plaintiff for personal injuries alleged to have been sustained by him for and on account of a certain automobile collision due to the alleged negligence of the defendant and on an assignment for damages to the automobile in which the plaintiff was riding. It ap [301] pears from the transcript that on or about the seventh day of October, 1922, the plaintiff was a passenger in a certain automobile, being driven in an easterly direction by one Clarence Buthenuth upon a certain main public highway in the county of San Joaquin, leading to the town of Modesto, at a point on said highway where it is intersected by a certain other highway known as and called the Atlanta-Bipon road. The complaint sets up two causes of action: first, for the injuries sustained by the plaintiff; secondly, for damages to the automobile in which the plaintiff was riding in the sum of $423.50, alleged to have been assigned to the plaintiff by the owner of the automobile in which the plaintiff was a passenger at the time of the injury. On the part of the appellant it is insisted that the testimony shows that the injuries received by the plaintiff were due solely and exclusively to the negligence of the owner and driver of the automobile in which the plaintiff was a passenger. On the part of the respondent it is contended that the injuries received by the plaintiff were due exclusively to the negligence of the defendant and that in any event, if the plaintiff was also negligent, the plaintiff not having anything to do with the control of the automobile in which he was riding would nevertheless be entitled to recover. The action was tried before the court without a jury. On the conclusion of the trial the court made its findings of fact and conclusions of law and awarded judgment to the plaintiff on the first cause of action in the sum of $512.40 and upon the second cause of action, to wit, for damages to the automobile in which the plaintiff was riding in the sum of $423.50. So far as this appeal is concerned upon the question of damages to the plaintiff for personal injuries sustained by him, and as to the liability by the defendant, we do not need to inquire as to whether or not the owner and driver of the automobile in which the plaintiff was riding was or was not also careless and negligent or whether his negligence concurred in causing the injuries to the plaintiff, for, as stated above, if the defendant’s negligence concurred in causing the injuries and the injuries would not have been inflicted had the defendant’s negligence not so concurred, then and in that case the judgment for the injuries sustained by the plaintiff must be affirmed. [302] Without reciting the testimony, it is sufficient to state that the testimony of the defendant as well as the testimony of Clarence Buthenuth, of Chester Hello and George C. Buthenuth all show that the defendant was driving a car unequipped with proper brakes, that is, that the brakes upon the car being driven by the defendant were so defective that they offered practically no resistance to its momentum and that if the car had been equipped with proper brakes, in view of the speed at which the defendant claimed he was driving for a few moments preceding the collision, the application of the brakes would have sufficed to avoid the collision. The motor vehicle law requires that every automobile operated upon the public highway shall be provided at all times with brakes adequate to promptly cheek the speed thereof and to stop said vehicle. A failure in this respect is negligence, and if such negligence contributed to the injuries of the plaintiff in this action his liability is fixed irrespective of any negligence on the part of the automobile driver of the car in which the plaintiff was riding as a passenger. The testimony to which we have referred was sufficient to authorize the trial court in making its findings, as above set forth. As to the second cause of action, to wit, upon the claim for damages to the automobile in which the plaintiff was a passenger and alleged to have been assigned to the plaintiff, the appellant urges there is no testimony in the case showing such assignment. The transcript of the testimony shows the following questions and answers upon this point: “Q. What is your name? A. Albert L. Buthenuth. Q. What is your occupation? A. Letter carrier. Q. Do you reside in Stockton? A. Stockton. Q. You are a brother of the plaintiff—of the assignor herein in this case? A. Yes, sir. Q. Clarence Buthenuth? A. Yes, sir.” We do not see in this testimony any proof of an assignment of any claim by Clarence Buthenuth to the plaintiff, Clarence Gilmore, in this action. This is the testimony of a brother of the alleged assignor and amounts at most only to proof of relationship. The answer filed by the defendant denies the assignment, and in order for the plaintiff to prevail in this action upon the second cause of action set out in his complaint, it is necessary under such circumstances to make [303] proof of such assignment. It cannot be assumed or taken for granted. The contention of the appellant, therefore, that there is no proof in support of plaintiff’s second cause of action, must be sustained. As the plaintiff’s right to succeed upon his second cause of action depends upon the determination of the fact of whether his assignor was or was not guilty of negligence, contributing to the collision, which must be determined by the trial court, we have purposely refrained from expressing any opinion upon the testimony contained in the transcript touching this question. For the reasons hereinbefore .given, the judgment of the trial court upon the plaintiff’s first cause of action, to wit, that part asserting and fixing the amount of damages he is entitled to recover and have on account of personal injuries sustained by him, will be and the same is hereby affirmed. As to the second cause of action stated in plaintiff’s complaint, to wit, for the amount of damages claimed for and on account of the injuries to the automobile in which he was riding, the judgment will be and the same is hereby reversed and remanded for a new trial upon said second cause of action only. It is also ordered that the appellant have and recover his costs incurred upon appeal herein. Young, J., pro tem., and Finch, P. J., concurred. A petition for a rehearing of the cause was denied by the district court of appeal on February 14, 1924, and the following opinion then rendered thereon: