Rees v. Chase

WILLIS, J.,

pro

tem.

In the court below respondents sued defendant Bernice A. Chase and appellant P. Earl Parks for damages for the death of their minor son, aged eighteen years, as a result of a collision between the automobiles of the respective defendants at a street intersection, the complaint alleging that deceased was a passenger and guest of appellant in his automobile and that both defendants operated their respective automobiles so carelessly and negligently that a collision resulted. The cause was tried before a jury which rendered its verdict against both defendants in the sum of $4,000, on which judgment was entered. Appellant moved for a new trial on the statutory grounds, which motion was denied. He alone appeals from the judgment on a record prepared under section 953a of the Code of Civil Procedure.

Appellant’s points are (1) that the evidence is insufficient to support the implied finding of gross negligence on his part, (2) erroneous instructions given at the request of plaintiffs, (3) excessive damages, and (4) error in denying the motion for new trial. No question is raised as to the sufficiency of the complaint to constitute a cause of action based on gross negligence in an automobile guest case.

The transcript of the evidence reveals this to be a case of collision between automobiles at a city street intersection, arising directly out of excessive speed under the circumstances existing at the time and place where it occurred, but with the additional claim herein of gross negligence on the part of appellant; and the case rests on the question of sufficiency of the evidence to support the implied finding of gross negligence. Under the evidence herein the question whether appellant was guilty of gross negligence was essentially one for the determination of the jury. After carefully reviewing the evidence we cannot say that there was a lack of evidence upon which to base the jury’s conclusions.

Appellant complains of instruction number 10, given at plaintiffs’ request, contending that by its language it sought to charge the jury on a question of fact, namely, that they must find the negligence of appellant to be a proximate cause of the collision. The portion objected to

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