Varner v. Hattenhaber

CRAIL, J.

This is an appeal from a judgment- for damages arising out of an automobile collision. At the time of the collision the plaintiff was riding on the running-board of a Chrysler car devoting his time and attention in an attempt to stay the loss of blood of a friend who had been

[201]

stabbed with a knife. They were on their way to a receiving hospital. The defendant was driving a Chevrolet car and as the Chrysler car was turning to the left at an intersection the defendant’s car ran into the Chrysler smashing it up badly and forcing it sideways so that the skid marks on the street showed for several feet. The impact of the defendant’s car left the Chrysler ear a wreck, crushing the plaintiff’s foot and causing him other injuries. The judgment went for plaintiff and defendant appeals. For the sake of clarity we shall refer to the parties as plaintiff and defendant rather than appellant and respondent.

It is the defendant’s first contention that the evidence fails to show any negligence on his part which proximately caused plaintiff’s injuries. On appeal it is the duty of this court to view the evidence in the light most favorable to the party prevailing in the trial court, and if there is any substantial evidence to support the findings we must resolve this contention in favor of their support. We have reviewed the evidence and we find it supports the findings and the judgment.

The defendant next contends that since the plaintiff was violating a city ordinance in riding upon a running-board he was guilty of negligence

per se

and that the conclusion is inescapable that as a matter of law the plaintiff’s position on the running-board proximately contributed to his injuries. He relies upon the ease of

Lorry

v.

Englander Dray age & Warehouse Co.,

108 Cal. App. 116 [291 Pac. 467]. That was a ease in which the facts were somewhat similar to the facts herein, although in that case the jitney bus was so little damaged that immediately after the collision one of the defendants took the injured person into it and drove it under its own power to the hospital. In sustaining a judgment of the superior court in favor of the defendants the appellate court said: “Under these facts we can see no escape from the conclusion that the conduct of appellants in riding on the running-board in violation of the ordinance was a proximate contributing cause of their injuries.” But the court further said: “We can conceive of cases where the impact might be of such a character that a jury would be justified in holding that the negligence of a person riding on the running-board in violation of an ordinance did not proximately contribute to his injuries.” The mere fact that a person occupies the unusual position of standing on the