Hollingum v. Moore

DOOLING, J.

Defendant appeals from a judgment for personal injuries awarded to plaintiff after a trial without a jury. The complaint pleaded and the court found that at the time of his injuries plaintiff was a guest in defendant’s automobile and the judgment is based upon a finding of defendant’s wilful misconduct.

Plaintiff was the only witness to the conduct of defendant leading up to the collision with a pole which caused plaintiff’s injuries and the principal question presented on appeal is whether his testimony is sufficient to support the finding of wilful misconduct. The essential portions of this testimony may be summarized as follows:

The parties met at Brisbane near the Bayshore Highway about 3:30 or 4 p. m. Defendant inquired about buying a house in which he was living and plaintiff said that since the house belonged to his wife defendant would have to talk to her about it. Defendant asked plaintiff to go with him in his car to see plaintiff’s wife and plaintiff agreed. When they reached the Bayshore Highway defendant “shot right out onto the highway” without stopping for the boulevard stop sign and turned north, in the opposite direction from plaintiff’s home. Plaintiff remonstrated with defendant and asked why they were going in the opposite direction and defendant said: “You just sit tight. You are going to see your cousin.” Plaintiff objected and asked to be let out but defendant over plaintiff’s objections continued to speed down the highway in the opposite direction from plaintiff’s home, “he was driving too fast to suit me. I was frightened. I was insisting upon him letting me out; but, after he didn’t stop at the stop sign there, then I did have an indication there was something rotten in Denmark, and I wanted to get out quick. . . . Q. How many times did you beg and plead with him to stop'?

[511]

A. A half dozen times. I would have jumped out but he was going at such a rate of speed that it was impossible. . . .

“As we were speeding down the highway, there was a truck and another car in front, and he was coming at such a speed that he must have figured on going around . . . Anyhow we lost control of the car and the next thing you know, I am through the windshield. . . . He was in the outer lane . . . There was two cars, a truck, in the center lane. . . . Well, first he started over this way (to the left) . . . and then the truck showed up. . . . Q. On which side of these cars did he try to pass ? A. On the right hand side. . . . Evidently with that one eye, he didn’t see that pole. Q. . . . What type of pole was this ? A. Concrete. Q. And it was off to the right of the highway limit? A. Yes. Q. Do you recall what nart of his car came in contact with the pole? ... A. Eight bang in the center. . . . Q. You did go through the windshield? A. Surely 1 did. . . . Slid right over the radiator.”