Flannery v. Koch

WILSON, J.—

Two automobiles driven by defendants collided causing the death of one Audrey Flannery who was a guest in the car operated by defendant Liberto. This action, which was brought by the mother of Audrey for the wrongful death of her daughter, resulted in a verdict and judgment against defendants, both of whom have appealed.

Fourteenth Street is a public highway extending northerly and southerly in the city of Santa Monica and is crossed by Carlyle Avenue at right angles. Fourteenth Street is a through highway. (Veh. Code, § 82.5.

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) Stop signs are located as authorized by section 471 of the Vehicle Code at the northeast and southwest corners of the streets. The accident occurred after dark. Defendant Koch was driving at a speed of about 25 miles an hour southerly on 14th Street. Miss Liberto was driving at between 25 and 30 miles an hour westerly on Carlyle Avenue. Koch was alone in his car; Miss Liberto was driving a single-seated coupé and had in the seat with her four girl friends as passengers. The evidence is uncontradicted that Miss Liberto’s vision was not obscured by her passengers. When she entered Carlyle at 16th Street one of her passengers stated that Carlyle was a dangerous street. As she approached 15th Street she sounded her horn, slowed down and changed into second gear, crossing the street at about 15 miles an hour. As she proceeded

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toward 14th Street one of her passengers said, “There is a boulevard stop sign there.” Miss Liberto testified she did not see the stop sign until the front of her car “was just about up to it.” At about the same time she saw the headlights of Koch’s automobile; she immediately put her foot on the brake pedal and when she found she could not stop her ear she stepped on the accelerator in an attempt to clear the intersection ahead of Koch’s car.

As Koch approached the intersection, at about a point 50 feet north of the line of Carlyle, he observed the Liberto car and when it appeared that the latter car was not making the boulevard stop he immediately applied his brakes, leaving skid marks 25 and 27 feet in length, respectively. The cars collided at about the center of the intersection.

The Liberto Appeal

Hinco the decedent was a guest in Miss Liberto’s ear plaintiff cannot recover unless she has established that the death “proximately resulted from the intoxication or wilful misconduct” of Miss Liberto. (Veh. Code, § 403.