Horn v. Volko

TYLER, P. J.

Appeal from an order granting a nonsuit in an action for damages, alleged to have been suffered in an automobile collision, by a guest against his host, based upon a claim of wilful misconduct. Plaintiff was injured in a rear-end collision between two Ford trucks, one being driven by respondent Yolko, the other by defendant Filippi. During the trial a motion for nonsuit on behalf of Yolko was granted. He was the driver of the automobile in which plaintiff was riding as a guest. Following the order granting the nonsuit, the case proceeded against defendant Filippi alone and went to the jury on the issue of his negligence. The jury returned a verdict in favor of Filippi and against the plaintiff. As above stated, this appeal is from the order granting a nonsuit on behalf of Yolko. Defendant Filippi is not a party to the appeal. There is little or no conflict concerning the facts. The three parties to the action were the only witnesses. The accident happened on the Bayshore highway, a little south of Redwood City. At this point the highway has four lanes, two for south-bound traffic, the other two for north-bound traffic. The Ford truck driven by defendant Filippi was proceeding southerly and wholly within the outer or slow lane of traffic at a speed estimated at from eighteen to twenty miles per hour. Plaintiff and appellant, as a passenger guest of defendant and respondent Yolko, was riding in a Ford pickup truck operated by Yolko, which was likewise proceeding in a southerly direction at a speed of from thirty to thirty-eight miles an hour in the outer or slow lane and to the rear of the truck operated by Filippi. The truck being driven by Filippi made a sudden stop, and respondent Yolko drove into it. Plaintiff testified that Yolko neither applied his brakes prior to the accident nor did he swerve to the right or left or in any manner change

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the direction in which he was traveling. Both plaintiff and Voiko were injured by the impact. Voiko testified that he had his eyes on the truck in front of him at all times and did not see anything that would cause the truck to make the sudden stop it did; that no signal was given; that it was too late for him to make a turn; that he applied his brakes which were in good condition, but to no avail, and his truck struck the one in front of him with sufficient force to demolish the front and left-hand side of his machine. After the impact Voiko remembered nothing, and. was taken to a hospital in Bedwood City.