McLeod v. Dutton

STURTEVANT, J.

Barbara McLeod, a minor, while riding as the guest of David C. Dutton, Jr., was injured in an automobile accident. David C. Dutton, Jr., being a minor, the plaintiff joined his father and mother as defendants. M. D. McLeod, Barbara’s father, commenced a separate action against the same defendants to recover his damages. The actions were consolidated and tried together. The jury returned verdicts in favor of the plaintiffs and from the judgments entered thereon the defendants have appealed.

Among other points the defendants contend that the evidence will not support a finding that the defendant David C. Dutton, Jr., was guilty of wilful misconduct and therefore both judgments lack evidentiary support. Turning to the brief of the plaintiffs the following facts appear. On the night of the 21st of December, 1933, David C. Dutton, Jr., a student in the San Rafael Military Academy, had assembled in a Cord sedan as his guests, the plaintiff Barbara McLeod, and Richard Leighton, who were seated on the rear seat, and Eleanor Gaddes, who was seated qn the driver’s right. They were on their way to attend a dance at the academy. Their automobile was on the front end of the Richmond-San Rafael ferry. On the same boat was Eugene R. Billet, another student of the academy, who had assembled in his Packard as his guests, Elmer Sammann and Evelyn Jurs, who were seated on the rear seat, and Miss Barton, who was seated at Billet’s right. Billet and his guests were also on their way to attend the same dance. While on the ferryboat the two parties met and held some conversation. Billet stated that he bet he would get to the dance first. To that remark Dutton replied, “Not if I can help it,” or “We will see about that,” or words to that effect. Dutton’s car was the first to leave the ferryboat.

[547]

Immediately adjacent to the ferry slip the road runs along a bluff. At once Dutton’s car set a high speed. The Packard did the same and followed 40 or 50 feet back. After leaving the bluff the highway is laid on level ground. Soon after reaching the level ground the Packard car pulled ahead of the Cord car. Both cars proceeded at a rate of speed variously estimated at from 50 to 60 miles per hour. At a point approximately three miles from the ferry slip the Packard car slowed down somewhat and the Cord proceeded to pass the Packard on its left-hand side and at a speed which was testified as being 73 miles an hour. Having passed the Packard, the Cord pulled to the right and into the right-hand lane. As stated above, these things occurred shortly after 9 P. M. There was evidence that the night was foggy. As to the exact condition in that respect at the place of the accident the evidence is conflicting. The lights on the Cord and on the Packard were burning. On Dutton’s right as he was in the act of passing the Packard car there was a large traffic sign “Slow”. Dutton testified that he knew of the existence of that sign, but on the occasion of the accident it had escaped his memory.