DeLoss v. Lewis

NOURSE, P. J.

Plaintiff sued for personal injuries on the theory of wilful misconduct on the part of the defendant with whom he was riding as a guest. At the close of plaintiff’s case the trial court granted defendant’s motion for a nonsuit.

The single question presented on the appeal is whether the evidence of wilful misconduct was sufficient to take the case to the jury. The evidence, which must be stated in the

[224]

light most favorable to plaintiff’s case, is that defendant invited plaintiff to take a ride in defendant’s automobile into the hills above Oakland along Skyline Boulevard and Redwood Road in the evening of September 9,1944. On the return trip defendant drove the car down Redwood Road at a “coasting” speed which left the car out of control. The road was steep, narrow, full of sharp curves and down grade all the way. The car was old, had been bought second-hand, and had been driven approximately 35,000 miles by defendant. For some months before the accident defendant had known that the brakes on the car were in bad condition, and that the emergency brakes would not hold at all when the car was running down grade. On the night in question,he put the ear in neutral to save gas and coasted down grade negotiating two curves successfully. Then the car went completely out of control, crashed through a fence, and landed in a farm. The car was so badly wrecked that it was beyond repair. Plaintiff’s injuries consisted of cuts about the face received when the car went through the fence.

Plaintiff’s appeal rests upon the theory that if the evidence is sufficient to justify the reasonable inference that respondent should have known that injury to his guest was a probable result of the defective condition of the car (of which respondent was well aware) a case was made for the jury. His theory is grounded on sound reasoning.

Wilful misconduct sufficient to enable a guest to recover under section 403 of the Vehicle Code is defined in

Turner

v.

Standard Oil Co.,

134 Cal.App. 622, 626 [25 P.2d 988], as follows: “Wilful misconduct, within the meaning of this statute, may then be defined as intentionally doing something in the operation of a motor vehicle which should not be done or intentionally failing to do something which should be done under circumstances disclosing knowledge, express or to be implied, that an injury to a guest will be a probable result.”