The assignment of error to the effect that the court refused to make a special finding on the issue of plaintiff's contributory negligence, in my opinion, is well taken. It may be conceded that, where negligence as to the operation of an automobile is alleged in the complaint in general terms, it is sufficient if the finding on the issue is equally general, and specific findings as to acts done or omitted are not necessary. But where, in an action for damages from the collision of two automobiles, the answer alleges contributory negligence, and there is evidence sufficient, if believed by the court or jury, to sustain the plea, it is error for the court to fail to find on the issue. Maxwell v. Western Auto *Page 192 Stage Co., 46 Cal. App. 548, 189 P. 710; Tucker v. United Railroads, 171 Cal. 702, 154 P. 835.
In an action for damages for personal injuries resulting from a collision between an automobile and a motorcycle upon which plaintiff was riding, where the issue whether plaintiff was guilty of contributory negligence was presented by evidence both pro and con, the failure to make a distinct finding on such issue is reversible error. Huntington v. Vavra, 36 Cal. App. 352,172 P. 166.
As to the finding, in general terms, that the defendant's negligence was the proximate cause of plaintiff's injury, it may well have been, as said the court in Huntington v. Vavra, that the plaintiff was guilty of acts which contributed proximately to cause the injurious consequences which resulted. The right to have a material issue presented by the pleadings in a cause determined by a finding of the court is one important to the parties to a suit, and the failure to make such a finding results in prejudicial error entitling the complaining suitor to reversal.
In Maxwell v. Western Auto Stage Co., after making it clear that, upon all the evidence, it was for the trial court to say as to whether, under the circumstances, there was negligence on the part of either plaintiff or the defendants, the court said:
"The failure, however, of the court to find as to the contributory negligence of the plaintiff was a matter which cannot be thus answered, and for which defendants are entitled to a new trial."
The finding of the trial court, as quoted in the opinion of Justice COLEMAN, does not even inferentially determine the issue of plaintiff's contributory negligence adversely to the defendant's plea. The finding fixes the entire responsibility for the accident upon the failure of the defendant to give any signal of his intention to attempt to pass plaintiff's car. The record discloses that, immediately upon the submission of the case, the trial judge announced his decision upon the merits from the bench. In the course of his decision, counsel for *Page 193 defendant interrupted and made this request in the form of a question:
"Mr. Huskey: If your honor please, would you be willing to let the record show how your honor views the violating of law on the part of Mr. Bawden by not ascertaining the short distance from him of the car passing, and allowing it to pass on his left?
"The Court: The court does not find it necessary to determine that it was the duty of Bawden to look around at the time when he was about to turn into Cheney Street, in view of the fact that the court believes that, when a car attempts to pass another car ahead at a street intersection, that the responsibility rests upon the car trying to pass, and the principal duty is upon the shoulders of the man who tries to pass another car at a street intersection, regardless of what these traffic cops say. I believe it is a dangerous thing for a person to pass another car at a street intersection at any such speed as thirty miles an hour. The record may show that."
From this expression of the court, supplemented by the formal finding as set forth in the opinion of my associate, it is manifest that the trier of the case not only failed but refused to make a finding upon the issue of contributory negligence. The fact that the court included the statement that the defendant attempted to pass plaintiff's car after plaintiff had given a plainly visible signal of his intention to turn into Cheney Street does not, in my opinion, amount to an adverse determination of the issue of contributory negligence. While I concede that it is incumbent upon the operator of a car approaching another from the rear, while both are traveling in the same direction, to exercise a greater degree of care, and that he must have his car well in hand and under perfect control, I do not yield to the proposition that the failure of the defendant to give any signal of his intention to attempt to pass plaintiff's car was, under the circumstances, such negligence as to be the proximate cause of the injury. The constant and frequent passage of automobiles along the streets *Page 194 of a city is in itself sufficient notice of the near approach of other automobiles and other vehicles, requiring of all drivers of such vehicles the exercise of a high degree of care and watchfulness. Government Street Lumber Co. v. Ollinger, 18 Ala. App. 518,94 So. 177.
I shall not pause to review the evidence, nor enlarge upon the reciprocal duties of drivers of automobiles or other motor vehicles proceeding in the same direction along the streets of a city, since I am of opinion that the refusal of the court to find on the issue of contributory negligence constitutes reversible error.