Garcia v. Webb

WHITE, P. J.

Mrs. Kathleen B. Webb has appealed from a judgment against her for $1,500 general damages and $271 special damages awarded to plaintiff because of personal injuries sustained by him.

Briefly, the facts found by the court in support of the judgment are as follows: About noon on October 11, 1950, plaintiff Saragosa Garcia was walking in a westerly direction along Sage Lane Street near the south edge thereof. There was no sidewalk. Defendant drove her automobile also in a westerly direction on the south and left side of the street directly toward plaintiff so as to create an imminent peril to his safety and plaintiff jumped upon the running board of defendant’s automobile to prevent being crushed between defendant’s automobile and a fence on the south and left edge of Sage Lane Street. Defendant increased the speed of the car and drove at about 20 to 25 miles per hour for about 300 feet and then without warning suddenly applied the brakes causing plaintiff to be violently thrown from said automobile and hurled to the ground. Plaintiff was injured in the fall. Defendant was intoxicated at the time. Plaintiff acted with due care and prudence and without negligence on his part and his injuries were the direct and proximate result of the negligence of defendant.

Appellant urges that the judgment should be reversed for the reasons that the findings and judgment are not supported by the evidence; that plaintiff violated sections 596.4 and 596.5 of the Vehicle Code of California; and that his said violations of the Vehicle Code constituted contributory negligence upon his part as a matter of law.

There is no dispute as to plaintiff’s injuries or the reasonableness of the amount of damages awarded to him.

Defendant has cited no evidence of any interference with her operation and control of her automobile in violation of section 596.4 of the Vehicle Code.

Section 596.5 of the Vehicle Code provides: “No person shall ride ... on any vehicle upon any portion thereof not designed or intended for the use of passengers. ...” However, a person who does a prohibited act “through misfortune or by accident, when it appears that there was no evil design,

[450]