Amidon v. Hebert

BARNARD, P. J.

This is an appeal from a judgment for the plaintiff, entered on a jury verdict. The action was based, under section 403 of the Vehicle Code, on wilful misconduct of the defendant in driving at an excessive speed upon wet pavement and on a downhill curve. The answer alleged contributory negligence and, as a separate defense, that the plaintiff knew before and during the trip of any wilful misconduct, that he assented to and lent his approval to such misconduct by riding in the automobile, and that he thereby assumed the risk. After judgment was entered the plaintiff died and his widow was substituted in his stead. This appeal followed. The original plaintiff will be referred to as the plaintiff.

The accident happened about 1 a. m. on March 28, 1947, at Crystal Cove, about 4 miles north of Laguna Beach. On the preceding evening the plaintiff and defendant and another man went to Balboa in the defendant’s car and bowled until about 10:30 p. m., during which time each of them had some beer to drink. They then went to Laguna Beach where they again bowled. Later on, they went to a bar where they had something to drink and then to a restaurant where they ate. After leaving Laguna Beach, on the way home, the plaintiff saw that the defendant was going at a fast rate of speed and asked him to slow down. The defendant replied “It is all right,” and speeded up as they approached Crystal Cove. The plaintiff then saw that the speedometer read 90 miles per hour and said to the defendant: “For God’s sake, slow down.” Very shortly thereafter the defendant lost control of the car which skidded 87 feet along the pavement, 120 feet along an embankment, and over the bank where it came to rest 425 feet from the point where it commenced skidding. The defendant testified that he was familiar with the highway and knew that the pavement was wet. Two witnesses who were driving along the same road testified that the defendant passed their car about 800 feet from the crest of the hill leading to Crystal Cove, and that he was then going between 70 and 80 miles an hour. These witnesses were the first to arrive at the scene of the accident, and they testified that

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they did not smell any alcohol on the defendant’s breath. A doctor who treated the defendant about an hour later testified to the same effect. While there was evidence that these parties had had some drinks during the evening there is no evidence that any of them were intoxicated. There is no evidence of speed or other improper driving until shortly before the accident. Another witness testified that four days after the accident the defendant told him that the accident was due to excessive speed and that he lost control of the car.