Smith v. Maloney

THOMPSON, J.

The plaintiff has appealed from a judgment which was rendered against her on the ground of contributory negligence, in a suit for damages for personal injuries received in an automobile casualty while she was riding as a guest in the defendant’s car. The complaint charged the defendant with liability for damages under the provisions of section 403 of the Vehicle Code alleging that the accident was the result of his attempt to drive his machine while he was under the influence of intoxicating liquor.

The cause was tried by the judge sitting without a jury. The court found that the defendant was intoxicated at the time of the accident, and that the plaintiff accepted the invitation and rode in his machine as his guest, knowing that he was then intoxicated. Judgment was accordingly rendered against the plaintiff on the ground of contributory negligence. From that judgment this appeal was perfected.

This appeal presents only two questions: First, does the evidence support the finding that the defendant was intoxicated at the time of the accident? Second, does the evidence support the finding that the plaintiff knew, or as a reasonable person should have known, at the time she accepted the invitation to ride in the defendant’s automobile as his guest, that he was intoxicated?

While there is a conflict regarding these issues, we are of the opinion both questions must be answered in the affirmative.

The accident occurred at the intersection of L and Sixteenth Streets in Sacramento, October 27, 1934, between 11 and 12 o’clock at night. Both the plaintiff and the defendant were then unmarried. They had been almost daily companions for two months. The plaintiff asked the defendant to accompany her to a buffet supper on Twenty-second Street in that city. The defendant had been playing tennis that afternoon. After completing the tennis game he visited the Pot & Spigot bar at about 6 :30 P. M., in company with

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Mr. Newell, and drank two Scotch highballs. He then called for the plaintiff and they drove in his automobile to the buffet party on ' Twenty-second Street between T and U Streets, where they arrived about 7 o’clock in the evening. During the progress of the party, in which some thirty or forty guests participated, the defendant drank four more Scotch or Bourbon highballs. About 10 o’clock the plaintiff and defendant, in company with two friends, drove in the defendant’s car to the Tavern, where he drank two more glasses of liquor. They then returned to the party, and after bidding adieu to their hosts, they returned at about 11 o’clock to defendant’s machine for the purpose of visiting the Senator Cocktail Lounge. They drove up Twenty-first Street to its intersection with L Street, thence westerly along L Street to its intersection with Sixteenth Street, where the collision with another machine occurred. The plaintiff testified that she had not particularly observed the defendant for that purpose before they started to drive to the Senator Hotel, but she had not noticed that he appeared to be intoxicated, yet before they reached P Street, which was only five blocks from their starting point, she became convinced he was drunk. The defendant attempted to place his arm around the plaintiff. She protested and told him to “watch his driving”. He laughed and increased the speed of his machine. When they reached L Street, he made a right angle turn on to that street at the rate of 45 miles an hour. She said in that regard: