McCance v. Montroy

MARKS, J.

This is an appeal from a judgment in consolidated actions, whereby each plaintiff was awarded damages for personal injuries suffered in a motor vehicle collision between another automobile and one owned and operated by defendant in which plaintiffs were riding as guests.

The accident happened in the early hours of August 2, 1943, on Twelfth Street between “ J” and “K” Streets in the city of San Diego, during the period that dim-out regulations were in effect. That it was caused by the negligence of defendant, induced by his intoxication, was established by the evidence. The finding to that effect is not questioned by defendant.

The sole ground urged for a reversal of the judgment is the contributory negligence of plaintiffs in riding in the automobile operated by an obviously drunk driver.

Defendant and two soldiers wound up an evening of drinking at the Botsford Hotel in San .Diego where they met plaintiffs. Shortly before midnight defendant suggested that the five obtain something to eat at an all-night barbecue stand situated on Thirtieth Street not far from Market Street in San Diego. They left the hotel in the automobile of defendant which was being driven by one of the soldiers, Sergeant Darold H. Seat, who was not intoxicated and who seemed to be a competent driver. Sergeant Seat was not acquainted with San Diego streets and defendant tried to direct him to the barbecue stand without any success. The party finally found themselves at or near the corner of Thirty-second and “K” Streets where defendant directed Sergeant Seat to stop the car while he attempted without success to obtain more liquor. Just when defendant took the wheel of the car is not entirely clear. It was probably about six blocks from the place "of the stop. Sergeant Seat tried unsuccessfully to dissuade defendant from driving. Defendant had been driving about 15 minutes before the accident hap

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pened. No one was able to tell the route he took during this time. The party found itself proceeding north on Twelfth Street near the gas tanks of the San Diego Gas and Electric Company. The collision happened shortly thereafter.

The question of the contributory negligence of the plaintiffs must depend on their duty, as reasonably prudent persons, to have left the automobile when it was stopped to permit defendant to take the wheel and thereafter drive the ear. No contributory negligence as a matter of law can be imputed to them for entering the automobile at the Botsford Hotel for it was to have been driven by Sergeant Seat who was not intoxicated and who proved himself a competent driver.