Berryman v. Quinlan

WARD, J.,

pro tem.

Plaintiff, by her guardian

ad litem,

brought suit against the defendants for personal injuries, alleging wilful misconduct. A jury returned a verdict against the plaintiff. Defendants appeal from the trial court’s order granting a motion for a new trial, based on the ground of the insufficiency of the evidence.

Appellants in their opening brief exhaustively quote and argue almost persuasively from cited wilful misconduct cases in an effort to uphold their contention that defendant Quinlan, the driver of the car at the time of the accident, was not guilty of wilful misconduct, but we feel impelled, in reference to defendant Quinlan, to follow the conclusion reached in

Chandler

v.

Quinlan, 25

Cal. App. (2d) 646 [78 Pac. (2d) 235], wherein a petition to have the cause heard

[610]

in the Supreme Court was denied. The decision in that case, affirming the judgment in favor of plaintiff, is not controlling, but the plaintiff was the other guest, the defendants the same, and the evidentiary facts almost identical. In the Chandler case the court said: “Mrs. Chandler, the plaintiff, together with Miss Berryman, Selleek and Quinlan left Redwood City on a pleasure trip to go to Toll House in Fresno County, approximately 200 miles from Redwood City. They stopped at Los Banos for lunch, and upon leaving Los Banos Mr. Quinlan took the wheel, Mr. Selleek riding in the front seat with him, and Miss Berryman and Mrs. Chandler occupied the rumble seat. Upon leaving Los Banos Quinlan drove at about 45 miles an hour, increasing the speed gradually until they had attained a speed of approximately 55 to 60 miles an hour. Some few miles out of Los Banos they approached an ‘S’ curve. As they were approaching the turn both plaintiff Mrs. Chandler and Selleek told Quinlan to slow down on account of the approaching curve. To one of these warnings Quinlan stated, 1 Oh, I guess I can make it. ’ Quinlan, the driver, was warned a second time by Selleek, who said, ‘Slow down, Tommy, there is a bad curve ahead of us’, and to this Quinlan again replied that he thought he could make it. The car was proceeding at a too rapid speed to negotiate the turn, as the result of which it skidded onto the gravel shoulder of the highway, causing the car to get out of control, going into a ditch, striking a fence, and causing the injuries to plaintiff here complained of. The weather was clear and the highway approaching the curve was straight, and not only was the curve known to the driver, but some 300 feet before entering the curve there was a state highway sign upon the road indicating an ‘S’ curve. . . . Here the evidence discloses that defendant Quinlan, when about 500 yards distant, could plainly see the curve he was approaching and continued at the rate of from 50 to 60 miles an hour into the curve, and was warned not only by two of his passengers but by the state highway insignia of an ‘S’ curve. Under these circumstances it would seem that one indulging in such conduct, had some knowledge that danger was likely to result therefrom, and was knowingly flirting with danger without necessity compelling him taking a chance, and was guilty of wilful misconduct. ’ ’