Weir v. Lukes

PULLEN, P. J.

This appeal is taken from a judgment rendered in favor of respondent, who is the mother and heir at law of deceased William J. Weir, who was killed while riding as a guest with John Lukes, appellant herein. The action was based upon the theory that appellant was guilty of conduct which constituted wilful misconduct within the provisions of section 141% of the California Vehicle Act.

The question here for determination is whether the

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acts and conduct of appellant were such as to constitute such wilful misconduct. The facts are briefly as follows:

Appellant, accompanied by decedent as his guest, was driving a light Ford truck northerly along the main highway between Vallejo and Napa. He was following a large dump truck which was approximately eighteen or twenty feet in length and eight and one-half feet in width. A third car was proceeding southerly. The concrete portion of the highway was eighteen feet in width with a white line dividing it into two lanes each nine feet wide. The big truck was traveling about eighteen miles an hour; the car approaching from the north was traveling about forty-five miles an hour, and defendant was following the dump truck on the right side of the highway, at about thirty-five miles an hour. When about twenty feet behind the dump truck defendant swerved out toward the left and looked ahead, and testified, at one point in his testimony, he then saw no car approaching from the north, and at another time testified he saw a ear down the highway about five hundred or six hundred feet distant. Defendant then apparently swung again slightly toward the right and partly behind the big truck, accelerated the speed of his car and veered to the left and around the truck. When he was about opposite the driver of the dump truck he then saw the oncoming ear which was then less than three hundred feet away. The approaching car drew off the paved portion of the highway on to the shoulder without apparently slacking speed, and the defendant continued forward and swung sharply to his right in front of the dump truck, but failing, or being unable to change his course, continued diagonally across the highway and struck a fence along the easterly side thereof, causing the death of Weir.

It was the contention of defendant, supported by testimony of certain mechanics -who examined the Ford truck after the accident, that the steering gear was defective and it locked, thereby preventing defendant from controlling the car, causing it to plunge across the highway.