17 P.2d 160 | Cal. Ct. App. | 1932
This is an action instituted to recover damages resulting from injuries to Marie L. McKinley, wife of H.G. McKinley, while Mr. and Mrs. McKinley were riding in an automobile as guests of defendant. The trial court found that defendant was guilty of gross negligence which was the proximate cause of the injury, and that H.G. McKinley was guilty of negligence which proximately contributed to the injury of his wife, which negligence was imputed to her and barred recovery for both. Plaintiffs have appealed from the judgment.
Appellants urge as the sole ground upon which they rely for a reversal of the judgment that the finding that H.G. McKinley was guilty of contributory negligence is not supported by the evidence and is contrary to it. Respondent has made no appearance in this court.
There is practically no conflict in the evidence, the stories of the parties varying in but one minor particular. Respondent, with appellants as his guests, left the Rex Arms Apartments in the city of Los Angeles at about 4:15 o'clock in the afternoon of February 19, 1931, to drive to the city of Fullerton. Mr. McKinley rode in the front seat beside the driver, with Mrs. McKinley occupying the rear seat. The journey was made over what is commonly known as the "Telegraph Road", which passes through the town of Buena Park over Grand Avenue. Just after turning into Grand Avenue respondent speeded up his automobile to between fifty-five and sixty miles per hour. Appellants both warned him that he was approaching a small town *300 where roads intersected Grand Avenue and that there were dangerous dips or drains across the road that could not be driven through at a high rate of speed. They both asked him to reduce his speed, which he failed to do. He drove through a deep drain at the intersection of Grand Avenue and Artesia Boulevard at fifty or more miles per hour. Mrs. McKinley was thrown against the top and fell back into the bottom of the car, causing a compressionary fracture of the first lumbar vertebra of her spine.
[1] Under section 113 of the California Vehicle Act, in effect at the time of the accident, the intersection of Grand Avenue and Artesia Boulevard was an obstructed intersection where the speed limit was fifteen miles per hour. According to the testimony of respondent he drove across the dip at between forty-five and fifty miles per hour. This is the only conflict in the evidence. The trial court found that his speed at that time was in excess of fifty miles per hour. This evidence amply sustains the finding that respondent was guilty of gross negligence.
[2] The finding that H.G. McKinley was guilty of contributory negligence was based entirely upon his own testimony from which it appears that all the parties had lived in the same city in Montana for a number of years, and during their residence there respondent had taken Mr. McKinley on several trips. Concerning these trips he testified as follows: "Q. And you often went out for a ride with him? A. Well, I wouldn't say often — occasionally. Q. And Mrs. McKinley also went for a ride occasionally? A. I think she has been with him very few times. She never rode with him very much. Q. And during that time you have found him to be a pretty fast driver, haven't you? A. At times he drives fast, yes, sir. Q. And you have cautioned him repeatedly about his fast driving before you came to California, haven't you? A. Well, I don't know what you would call repeatedly. If I go out with him and he drives too fast I would caution him to slow up. Q. You have had occasion to caution him a number of times when you have been riding with him? A. Yes, sir; I believe I have during that period. There might have been times I would only go out with him twice a year and there have been times I wouldn't be with him at all because we *301 haven't had no business interests whatever and just merely friends the last ten years. Q. When you have gone with him you have had occasion to caution him about his fast driving? A. If he drove what I thought was faster than I wanted to drive I would caution him. Q. And you did caution him, did you? A. Well, I suppose I have; yes, sir, I might say that I have."
The evidence shows that respondent came to California three days before the accident. The day after he arrived he took Mr. McKinley for a drive on Wilshire Boulevard in the city of Los Angeles. On the second day he took him to the city of Santa Ana. Earlier on the day of the accident he drove appellants to a funeral in Los Angeles. On none of these occasions did he drive "fast" nor was he warned as to the speed at which he was traveling.
Mr. McKinley testified concerning the trip to Fullerton, prior to reaching the place of the accident, as follows: "We left Los Angeles I should say about between four and four-fifteen, left the Rex Arms for Fullerton, and after we got out at the edge of town Mr. Dalton speeded up his car there until the speedometer would show from 50 to 60 miles an hour, and I cautioned him two or three times on the way out that he hadn't better drive so fast as he had done heretofore when I had ridden with him also." It was stipulated that Mrs. McKinley's testimony, if given, would be to the same effect.
Expressions similar to those used by Mr. McKinley that respondent "drives fast", "drives too fast", "drove what I thought was faster than I wanted to drive", were considered by the Supreme Court in the case of Diamond v. Weyerhaeuser,
The same conclusion was reached in Rosander v. Market StreetRy. Co.,
On the question of contributory negligence the trial court found "that the said plaintiff, H.G. McKinley, had knowledge of the rapid and careless manner in which the defendant generally operated his said automobile and had often protested against such operation, which protest had been disregarded by the said defendant, that despite said knowledge on the part of the said plaintiff, the plaintiff and his wife continued to go as guests in the defendant's car, which the Court finds was negligence on the part of the said plaintiffs, and which negligence the Court finds contributed proximately to the injuries suffered by the plaintiff Marie L. McKinley".
From the authorities cited it is evident that this finding cannot be supported by the testimony that respondent drove his automobile "fast", or "too fast", in Montana. The finding must derive all of its support from the testimony of appellants, already quoted, concerning the particular ride in which Mrs. McKinley received her injury. *303
There is a total lack of evidentiary support of that portion of the finding to the effect that Mr. McKinley had knowledge that respondent generally operated his automobile in a rapid andcareless manner. Proof that a driver operated his car at a speed of fifty miles per hour during a portion of a particular trip does not prove that he generally drove at such a speed.
An analysis of the record has satisfied us that respondent did not drive any material portion of the distance between the Rex Arms Apartments in Los Angeles and the scene of the accident at a speed of fifty or more miles an hour. We are entitled to take judicial notice of the political subdivisions of the state (sec. 1875, Code Civ. Proc.), of principal and well-known streets and thoroughfares (Varcoe v. Lee,
Mr. McKinley testified that two or three times he requested respondent to reduce his speed during the trip. He made such a request just before the accident and we presume that this was the last of the two or three times mentioned in other parts of his testimony. We have reached the conclusion that this evidence fails to support the finding "that the said plaintiff, H.G. McKinley, had knowledge of the rapid and careless manner in which the defendant generally operated his said automobile", upon which the trial court based its conclusion that the appellants were *304 guilty of contributory negligence. There was no evidence that respondent generally drove his automobile in such a manner.
The reasonable precautions which a passenger in an automobile for hire is required to use for his own safety when placed in a position of danger by his driver are fully discussed in the following cases: Dowd v. Atlas Taxicab Co.,
The question of whether or not a plaintiff is guilty of negligence and whether or not such negligence contributed to his injury is usually one for the trial court or the jury. (Shields
v. King,
In retrying the case the trial court should bear in mind that from the evidence now in the record the only warning of danger to themselves that appellants had until just before the accident was that respondent drove his car at an excessive and unlawful rate of speed on one or two occasions *305 earlier on the trip. This might not necessarily convey to them a warning that he would suddenly change from a speedster to a grossly reckless driver and after having been warned of a danger he was approaching, wantonly drive his car at a speed of fifty or more miles an hour through an obstructed intersection and through a dangerous dip in the pavement and thus break the back of Mrs. McKinley.
Because a material portion of the finding upon which the trial court based its conclusion that appellants were guilty of contributory negligence is not supported by any evidence, the judgment is reversed.
Barnard, P.J., and Jennings, J., concurred.