Stewart v. Wagenbach

CURTIS, J.

The petition for a hearing of this cause was granted by this court for the reason that we were in grave doubt as to the correctness of the appellate court’s conclusion upon the question of contributory negligence of the deceased. We have carefully studied the evidence in this case bearing upon the question of the contributory negligence of the deceased, and while it is our opinion that the trial court may well have concluded therefrom that the deceased was not guilty of contributory negligence in failing to remonstrate at the rate of speed at which the car was being driven just prior to the collision, as the time in which said remonstrance could have been made was at most only a few seconds, yet we are not prepared to say that from the evidence the trial court was not warranted in drawing the inference that deceased was in duty bound, as a reasonable person, to make such remonstrance, notwithstanding the very brief interval of time during which said car was being driven at an excessive rate of speed. This question was one of fact for the trial court, and its deter

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mination thereof, so long as a reasonable inference could be drawn from the evidence supporting its conclusion, may not be disturbed by a reviewing court. We, therefore, adopt the opinion of the District Court of Appeal, written by Mr. Justice

pro tem.

Hahn, as the opinion of this court. It is as follows:

“This action is one wherein plaintiff sought damages for the death of her minor son, of the age of 18 years, which it is alleged was caused by the gross negligence of defendant Erwin Wagenbach, in whose automobile deceased was riding at the time he received injuries which caused his death.

“Defendants, in addition to denying the allegations of negligence, in their answer set up the plea of contributory negligence on the part of the deceased. The court found in favor of plaintiff on the issue of gross negligence, and in favor of defendants on their plea of contributory negligence. From this judgment plaintiff appeals, urging that the evidence does not support the findings of contributory negligence on the part of deceased.

“The accident in which deceased lost his life occurred about 1 o’clock in the morning while he and two young-lady friends were returning home in a one-seated automobile driven by defendant Erwin Wagenbach. So dense was the fog which prevailed, that the lighted street lamps were barely visible to the occupants of the automobile, nor could the driver see the roadway more than 30 feet ahead of his car. While driving at a speed of 50 miles per hour along this highway, which was known to be beset with curves, the car crashed into the street curb at one of these curves. Deceased was throwm from the car, striking the pavement with such force as to cause injuries which resulted in his death. At no time did deceased protest the speed at which the car was being driven, or request that he be allowed to leave the ear.