Rode v. Roberts

STURTEVANT, J.

While riding as the guest of her aunt, the defendant, in an automobile being driven by the latter, the plaintiff was injured in an automobile accident. In her action to recover damages for the injuries so sustained the jury returned a verdict in her favor. From the judgment entered thereon the defendant has appealed.

The plaintiff’s complaint was based on the provisions of section 141% of the California Vehicle Act as amended by chapter 812 of the Statutes of 1931. The statute provides that in an action by a guest “ . . . the burden shall be upon plaintiff to establish that such intoxication or wilful misconduct was the proximate cause of such death or injury or damage”. In the instant ease there was no claim that the defendant was intoxicated. In presenting her appeal the defendant contends that there was no evidence of wilful misconduct on her part. That is the sole question presented.

Both parties concede that the meaning of the words “wilful misconduct”, as used in said statute, are fully defined in

Meek

v.

Fowler et al.,

3 Cal. (2d) 420 [45 Pac. (2d) 194].) It. therefore becomes necessary to ascertain the rights of the parties as measured by the doctrine stated in the Meek case and the cases there cited.

For some time prior to July 13, 1934, the plaintiff had resided on Lyon Street near the Presidio in San Francisco. A short time before that date she had been ill and confined in a hospital, but returned to her home on that date. Knowing of her convalescence, her aunt, the defendant, invited her to take a vacation at the aunt’s home near Concord in the

[640]

county of Contra Costa. On the, morning of July 16, 1934, the defendant, her husband, and Catherine Beam, their granddaughter, arose about 4 A. M. and drove to San Francisco. Mr. Roberts went to his place of business. Mrs. Roberts and Catherine later went to the plaintiff’s residence where' the plaintiff entered the defendant’s car and they started for Concord. The defendant was driving, the plaintiff sat to her right, and Catherine sat behind the plaintiff. The record discloses no fault in the driving of the defendant until the automobile reached a point one mile west of where the accident occurred. The defendant was an experienced driver and had recently driven to Crescent City and back, being gone approximately two weeks. On the date of the accident she drove along the highway at a speed of approximately 25 or 30 miles per hour. When she reached a point about a mile and a quarter west of the Grant Miller pumping station on the highway leading from Orinda to Lafayette the plaintiff testified that the defendant yawned and at about the same time she allowed the left front wheel of the car to travel along the northerly side of the division line. The plaintiff testified that noticing these things, she asked the defendant if she wanted to stop and take a rest. The defendant replied that she was not tired and proceeded. The highway is 18 to 20 feet wide and on each side is a shoulder "2 to 3 feet wide. The record contains no evidence that the highway is filled in or that it rests on an embankment. While there was other traffic on the road, none is shown to have been in the immediate vicinity of where the accident occurred. No obstructions are mentioned excepting two telegraph poles, one on the right-hand side of the highway and one, farther east, on the left-hand side. Bach one stood approximately 1% to 3 feet from the shoulder. The road is straight. It was formerly a concrete road, but before the accident it had been rough-surfaced with macadam. The accident occurred at about 3:30 P. M. on July 16, 1934. There is no evidence that the road was wet from any cause whatever. The evidence shows that there was no loose gravel on the road, but on the outside of the shoulder there was some loose gravel. The record discloses no turns. The plaintiff testified that within the mile zone which we have mentioned at different times the defendant’s car was partly or wholly on the left-hand side of the highway. When at a point about a quarter