Lombera v. Union Paving Co.

KNIGHT, J.

The defendant John L. O’Donnell, an employee of the defendant Union Paving Company, was driving a Ford truck belonging to said company in an easterly direction along Tilton Avenue in San Mateo, and about the time he reached and started across the intersection of Fremont Avenue a sedan driven by the defendant Mrs. Verda Pope approached from the truck driver’s left, on Fremont Avenue, and started across said intersection; thereupon, and in order to avoid being struck by the sedan, so the truck driver claimed, he swerved suddenly to the right, and in doing so caused the truck to jump the curb at the southeast corner of the intersection and crash into a telephone pole. Plaintiff was riding as a guest on the truck with 0 ’Donnell at the time of the accident and was injured; and on account of said injuries he brought this action for damages against O’Donnell, the paving company, Mrs. Pope and her husband. The complaint alleged that the accident was proximately caused by the “grossly, careless and negligent manner” in which the two vehicles were driven. The trial took place before the court sitting without a jury, and upon the issue of negligence the court found that “the defendant Verda Pope so carelessly and negligently drove and operated said Studebaker sedan automobile ... as to cause the automobile in which plaintiff was riding to collide with a telegraph pole and proximately caused the plaintiff to strike his head with great force. . . . That said John L. O’Donnell did not drive or operate said automobile truck in a grossly careless or negligent manner, and that the said accident and injuries sustained by plaintiff were not due to or caused by any gross negligence on the part of the defendant John L. O’Donnell.” Plaintiff’s damages were fixed in the sum of $2,000; and judgment was entered in his favor and against Mrs. Pope and her husband for that amount, it being further adjudged that plaintiff recover nothing from O’Donnell and said paving company. From said judgment Mrs. Pope and her husband have appealed.

Stated briefly, the first point made by appellants is that plaintiff having charged in his complaint, in general

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terms, that Mrs. Pope was guilty of gross negligence, no judgment could be obtained against her based on a finding of ordinary negligence. In other words, it is contended that when plaintiff failed to prove gross negligence on Mrs. Pope’s part as alleged in the complaint, she was entitled to a nonsuit; that consequently the trial court’s decision finding ordinary negligence is against law and the judgment based thereon cannot be sustained. No authority in point has been cited by either side; nor so far as our own research has extended have we been able to find any case in this state deciding the disputed question. Respondent relies mainly upon certain language used in the decisions in