Newman v. Solt

FRICKE, J., pro tem.

Respondent was injured while riding as a guest of appellant Earl M. Ross in an automobile belonging to appellant Margaret Solt. The complaint alleged that the injuries sustained were caused by the negligence and careless operation of the automobile and the wilful misconduct of appellant Ross. The trial court directed a verdict in favor of Margaret Solt and the jury returned a verdict in favor of both appellants. Thereafter the court granted a motion for new trial as to both appellants, from which order this appeal is taken.

According to the testimony of respondent, on the night of February 24, 1934, he and appellant Ross left a dance and, in the automobile of Miss Solt driven by Ross, went to Mont-rose where each purchased a pint of whiskey to take back to the dance. As they entered the car Ross said he would like to see how fast the car would go, to which Newman replied merely that there was no hurry. After driving three-quarters of a mile respondent observed that they were traveling at the rate of sixty-three miles an hour, and thereupon requested Ross to slow down, whereupon the latter reduced the speed of the ear to fifty-eight miles an hour. Nothing further was said by Newman concerning the operation of the automobile until, according to his testimony, the car was thirty-five feet from a corner to the beginning of a gradual curve in the road, when he yelled to Ross to look out. The witness Newman is erroneously quoted in respondent’s brief as giving the distance from the corner as 350 feet and the witness in making a diagram placed the car as being at a point

[52]

about 120 feet from the corner. Instead of making the turn Ross drove more nearly in a straight line, leaving the macadam portion of the road and passing on the unpaved portion of the highway at a point approximately sixty feet beyond the corner. The machine traveled about 125 feet on this unpaved portion of the highway, struck a post, ran about eighty-five feet further, struck several trees and overturned. It appears that the skidding of the wheels in the sand forming the unpaved portion of the road prevented the driver from turning the ear back to the macadamized central part of the highway. When Newman observed that Ross was driving nearly straight ahead instead of following the curve in the road he grabbed the steering wheel and tried to turn it, but for some reason not disclosed was unable to do so.