Weeks v. Raper

VAN DYKE, P. J.

This is an appeal from a judgment entered upon the jury’s verdict in favor of the defendants in a personal injury action.

The accident which gave rise to this litigation occurred near Napa on January 18, 1953, at approximately 2 o’clock in the morning on a narrow, two lane county highway which had virtually no shoulders. It was dark and misty. Appellant Venus Weeks, accompanied by her husband and mother, was driving west at approximately 35 miles per hour. Respondent Donald Raper, a minor, was proceeding in the same direction at a speed of between 40 and 50 miles per hour. He was traveling alone in an automobile owned by his parents, respondents Albert and Geneva Raper, which automobile he was using with their knowledge and consent.

Donald had been following and gradually overtaking appellants’ automobile for a distance of about half a mile. The two vehicles had rounded two curves and then came into a straight stretch approximately 300 feet distant from the scene of the accident which occurred at a point where the entire left side of the highway for a distance of approximately 80 feet had caved in to a depth of 25 feet. Appellants were thoroughly familiar with this dangerous condition of the highway, which had existed for about a month, but Donald knew nothing of it.

Donald testified that when he entered the aforementioned straight stretch of the highway, appellants’ car was then “over-riding the centerline” but that it pulled over to the right when he honked and blinked his lights to signal his intention to pass. When his automobile was practically abreast of that of appellants, Donald saw directly in front of his car several white posts which marked the beginning of the caved-in portion of the highway. He immediately stepped on the gas and “cut in” as far as he “could to keep from going over the edge.” In so doing, his automobile struck that of appellants. The impact was slight, but of sufficient force to cause the appellant Venus Weeks to momentarily lose control of her automobile and strike a telephone pole on the edge of the road. However, she managed to pull back on the paved portion of the highway and continued on her course. Donald

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did not stop. He said he did not realize that he had hit appellants’ automobile; that he had only heard a slight metallic click as he passed, and that when he looked back the lights on appellants’ automobile indicated that it was in motion and proceeding normally.