293 P. 623 | Cal. Ct. App. | 1930
This is an action for damages for injuries sustained by the plaintiffs while riding as guests in an automobile driven by the defendant. The accident occurred near Deming, New Mexico, about 10 o'clock on the evening of December 12, 1927. The defendant, driving a Willys *651 Knight automobile equipped with four-wheel brakes, was proceeding west along a main graveled highway, the traveled portion of which was eighteen feet wide. At the point where the accident occurred a combination cattle gate and cattle-guard was located upon the highway. A post stood in the center of the roadway, on the south side of which was an iron gate, which was closed at the time, and on the north side thereof was a cattle-guard so constructed as to permit automobiles to cross. This cattle-guard, being seven or eight feet in width, was the only passageway open to automobiles at that time without opening the gate across the south half of the road. The post and gate were painted white, and the defendant had passed over this cattle-guard on a previous occasion when he traveled east. As he approached the cattle-guard on his right side of the road, defendant was traveling at a speed of thirty miles per hour. He observed the cattle-guard when about 200 feet therefrom and at the same time saw the lights of approaching cars on the other side of the gate, one of these cars being somewhat nearer than the others. When he was about six or eight feet from the cattle-guard, he saw the first of the approaching cars make rather a straight turn into the north half of the road, and directly into his path. As soon as he observed this, he put on his brakes, but the two machines collided head-on. When the two cars came to rest, the rear wheels of defendant's Willys Knight were from two to four feet west of the cattle-guard, and the other car, a Chevrolet, stood about five or six feet away, both cars being badly damaged. Both of the plaintiffs were asleep in the rear seat of defendant's car at the time of the collision. The only evidence as to how the accident occurred was the testimony of the defendant, who was examined under section 2055 of the Code of Civil Procedure, his testimony being then adopted as their own evidence, by the plaintiffs. At the conclusion of plaintiffs' case, the court granted a motion for a nonsuit, and from the ensuing judgment this appeal is taken.
[1] Appellants' first point is that the motion for a nonsuit was insufficient, in that it failed to sufficiently state the grounds therefor. Appellants quote the motion as follows: "At this time, the defendant again moves for a nonsuit on the ground that the evidence of the plaintiffs being all in, *652
there is not a sufficient case made for a jury," and citesHenley v. Bursell et al.,
The next question raised is that the evidence presented a question of fact, as to the negligence of the respondent, which should have been left to the jury. [2] The rule is that where a driver of an automobile is sued by his guest for injuries sustained by the guest through the negligent operation of the automobile, the burden is upon the plaintiff to show negligence upon the part of the defendant. (Morris v. Morris,
In 19 Cal. Jur., at page 596, the rule is thus stated: "One who is himself not negligent is entitled to rely upon the presumption that others will exercise due care, so that it is not negligence to fail to anticipate danger which can come only from a violation of law or duty upon the part of another."
In Robinson v. Clemons,
[6] Common experience shows that a rate of speed of approximately thirty miles an hour on an eighteen-foot road in an unpopulated country is ordinarily not excessive or reckless. The respondent, so proceeding, could not be charged with negligence until something happened to warn him that danger existed. As he proceeded on his right-hand side of the road, the lights of approaching cars on his left-hand side of the road would not be such warning. Had these lights been over on his side of the road they might have constituted a warning, even though he felt they had no right to be there. But as they continued upon their own side of the road, he had a right to assume that they would not at the last minute suddenly turn into his pathway. The only direct evidence shown by the record is that of the respondent, who testified that when he was within six or eight feet of the cattle-guard, the other car made rather a straight turn directly at him. The only circumstantial evidence upon this point is that after the accident there were to be seen skid marks showing that the Chevrolet car had skidded for twenty or thirty feet. This, with the position of the cars after the accident, indicates that the Chevrolet car was coming at some considerable speed, and that when the driver saw the gate was closed in front of him, he put on his brakes and turned to his left side of the road. We find nothing in the record to show that the defendant was not proceeding in a proper manner up to the point where he saw that the approaching car, in disregard of the law and all common prudence, was turning into his pathway, and it fully appears that when this occurred he put on his brakes and did all he could to stop. Under such circumstances, we think the appellants have failed to meet the burden of proof which is upon them.
[7] A nonsuit may properly be granted where the evidence, viewing it in the light most favorable to the plaintiff, will not support a verdict in his favor. The rule is stated in 9 Cal. Jur., at page 556, as follows:
"Although the early practice in England and in this country was otherwise, it is now settled that a mere scintilla of evidence will not justify a judge in leaving a case *655 to the jury. Judges are no longer required to submit a case to a jury merely because some evidence has been introduced by the party having the burden of proof, unless the evidence be of such a character as that it would warrant the jury to proceed in finding a verdict in favor of the party introducing such evidence. Therefore, to avoid a nonsuit, the evidence of the plaintiff must be sufficient to raise more than a mere surmise or conjecture that the fact is as alleged. It must be such that a rational, well-constructed mind can reasonably draw from it the conclusion that the fact exists. The court may grant the motion when, viewing the evidence of the plaintiff in its most favorable aspect for him, it is of the opinion that the evidence will not support a verdict in his favor, or where the evidence does not establish a prima facie case."
In our opinion, the evidence shown by this record would not have been sufficient to sustain a judgment in favor of the plaintiffs, and the motion for a nonsuit was therefore properly granted.
The judgment is affirmed.
Marks, Acting P.J., and Warmer, J., pro tem., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on December 12, 1930, and a petition by appellants to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on January 12, 1931. *656