Fuller v. Chambers

THE COURT.

This is an appeal from a judgment of non-suit entered after plaintiffs rested in an action for the wrongful death of their son who was killed when a car in which

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he was riding as a guest overturned. The driver of the car was defendant Chambers, allegedly acting in the course of his employment by defendant California Electric Supply Company. Defendant in singular will hereafter refer to defendant Chambers. The nonsuit was based on failure to prove wilful misconduct. No intoxication has been alleged.

Plaintiffs produced the eyewitness Chance, a truckdriver, who at the time of the accident was driving his Ford and trailer north on California State Highway 41 between Hub and Easton, at a place where said highway after following Elm Avenue in northerly direction turns east, follows Elk-horn Avenue east for some 220 feet and then turns north again; the east turn is indicated by a “curve” sign south of the curve. To the side of the curve is a culvert protected by a railing. It was about 6 o’clock on December 21, 1953 and dark. Chance had seen behind him the lights of a car which was gaining on him. Before entering the curve he braked and diminished his speed from 43 to 35 miles. While he was entering the curve the car passed him, driving in the southbound lane, at a speed which he estimated at double his own or 70 miles. Some 15 feet in front of the witness the ear failed to negotiate the turn and, going crossways, hit the culvert and overturned, spinning sideways like a “yoyo” and landing on its top. The occupants were spilled around. When the witness reached defendant he smelled alcohol on his breath. He did not see alcohol around. There was no other traffic near.

To an action based on wilful misconduct the general rule applies that a nonsuit may be granted only when, disregarding conflicting evidence, giving to plaintiff’s evidence all the favorable consideration to which it can legally be entitled, and indulging in every legitimate favorable inference which may be drawn from it, there must result a determination that there is no evidence of sufficient substantiality to support a verdict in favor of plaintiff, if such a verdict were given.

(Marchi

v.