Fern Kelley v. Frank Hudson

Plaintiff had judgment for damages for personal injuries allegedly suffered through defendant's negligence, and defendant appeals. It is not contended that the award was excessive; liability is the disputed issue. Pending the appeal plaintiff died and his administratrix has been substituted as respondent in his stead, but for convenience we shall continued to refer to him as plaintiff in the cause. We have concluded that a retrial must be ordered for reasons presently to be discussed, and it is therefore necessary to set out only the facts that serve to introduce that Discussion. Defendant's automobile and another in which plaintiff was riding as a passenger met at the crest of a hill on a narrow road while traveling at disputed speeds estimated from ""50 or 55 miles an hour"" to ""70 or better."" Each claimed that his vehicle was in its own proper lane of traffic, each claimed that his adversary's vehicle was partially across the center line in the wrong lane of traffic and that it continued to approach in substantially that position with no decrease in speed, and each claimed that by reason of the other's negligence in those particulars he had been obliged to veer from the traveled portion of the roadway in order to avoid the impending collision. A collision between the two vehicles was actually averted, but in the course of the maneuver plaintiff's automobile went out of control and overturned, injuring him.