House v. Schmelzer

BARNARD, P. J.

This is an action for damages for injuries received by the plaintiff through the overturning of an automobile driven by the defendant Victor Schmelzer and owned by the defendant H. G. Schmelzer. The accident happened shortly after 2 o’clock on the morning of February 5, 1933, on the grounds of the Santa Ana Country Club while the plaintiff, a girl 18 years of age, was riding as a guest of the defendant Victor Schmelzer. A young man named Reason was also in the ear and the three were returning from a dance at Balboa when the car left the highway, proceeded for some 150 feet into the grounds of the Country Club, and overturned. The court found that the defendant driver was intoxicated and also found that the plaintiff was guilty of contributory negligence in that the place from which they started was in a business district or well-populated place and that the plaintiff either knew or should have known that the driver of the car was intoxicated. From a judgment in favor of the defendants the plaintiff has appealed.

The only point raised on this appeal is that the evidence is not sufficient to sustain the finding of contributory negligence on the part of the appellant. This argument is largely based upon the testimony of the appellant and of the third occupant of the car to the effect that they observed nothing “peculiar” or “unusual” about the conduct of the driver of the car at any time prior to the time of the accident.

The appellant testified that between 8 and 9 o’clock on the preceding evening she drank three cocktails in a home in Santa Ana; that in company with a young man and another girl she left Santa Ana about 9 or 9:30 and arrived at Balboa at about 10 o'clock; that they went to a dance there at a place known as The Rendezvous; that later in the evening she was unable to find the young man who took her there; that about 1:15 she met Victor Schmelzer and Reason and asked them to take her home; that shortly

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after that time the three went to a place in Newport known as the Green Dragon, where each drank coca-cola mixed with alcohol; that they then went back to the dance in Balboa; and that when the dance closed about 2 o’clock they started for home. With reference to the ride up to the time of the accident, she testified that she was “kind of half asleep” and that “at intervals I knew we were on the main highway”; that at Costa Mesa, which is some three or four miles from Balboa, they turned off about two blocks from the main part of town and went toward the Country Club; that at a point some three-quarters of a mile before they reached the place where the accident occurred, Leason was sick and left the car and they remained stopped for about ten minutes; that she knew Leason was sick but did not pay any attention to him; that when they started on she kind of dozed off again; that immediately before the accident “I was rather half asleep and I woke up and trees were just coming towards me”; and that she remembered nothing further.