Lein v. Parkin

SPENCE, J.

Plaintiff appeals from a judgment entered in favor of defendant in a personal injury action. Plaintiff

[399]

also purportedly appeals from the order denying his motion for a new trial. The latter order is not appealable and the appeal therefrom must be dismissed. (Code Civ. Proc., § 956;

Lewis & Queen

v.

N. M. Ball Sons,

48 Cal.2d 141, 146 f.n. [308 P.2d 713].)

The trial court, sitting without a jury, found that plaintiff was a “passenger” in defendant’s automobile and that defendant’s negligence had caused the injury. However, the court entered judgment for defendant, based upon its finding that plaintiff had assumed the risk of defendant’s negligence.

The only issues presented upon this appeal are (1) whether the triál court properly considered the question of plaintiff’s assumption of risk when the defendant had not pleaded either that defense or the defense of contributory negligence, and neither defense had been discussed prior to the time that the trial court made its finding of assumption of risk, and (2) whether there was substantial evidence to support the finding of assumption of risk. These issues may be resolved according to California law although the accident occurred in New Mexico. The trial was conducted as if California law applied and the briefs on appeal are also predicated on the applicability of California law. We may therefore conclude that both plaintiff and defendant have agreed to have the issues determined pursuant to the law of California.

(Cf. Lubin

v.

Lubin,

144 Cal.App.2d 781, 786 [302 P.2d 49].)

In support of the judgment, defendant contends that certain evidence introduced by plaintiff constitutes substantial evidence to sustain the trial court’s finding of assumption of risk. Plaintiff testified, on direct examination, that in June 1953, he and defendant were traveling from Los Angeles to New York under an agreement to share the driving of defendant’s 1950 Studebaker and the expenses of the trip. Plaintiff stated that defendant had had no prior experience in driving upon desert roads that are frequently covered with sand and dirt, yet he continually drove at speeds above 75 miles per hour over such roads. Defendant was “always in a hurry” and had announced that he intended to reach New York in three or four days. Plaintiff frequently admonished defendant to drive more slowly while, on the other hand, defendant asked plaintiff to drive more rapidly whenever plaintiff was driving. After they had been driving continuously for 18 hours, plaintiff convinced defendant that they should stop overnight at a motel in Albuquerque, New Mexico.