DuBois v. Owen

GOULD, J.,

pro tem.

Plaintiff was a guest of defendants upon an extended automobile trip. While traveling in Arizona July 13, 1935, with defendant Mildred Owen driving, her husband, defendant Harvey Owen, asleep in the back seat and plaintiff dozing in the front seat, a tire blew

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out, the car careened from the highway and turned over in a ditch. Upon trial before a jury plaintiff was awarded damages of $5,000 for the injuries suffered by her in the accident, the judgment running against both defendants, who prosecute this appeal.

As preliminary to a discussion of the points raised by appellants it is to be noted that there was at the time of the accident no speed limit in miles per hour in the state of Arizona. Neither did the Arizona law limit the recovery of a guest to those eases where injury or death proximately resulted from the intoxication or wilful misconduct of the driver, as is the ease in California. Ordinary negligence of the driver was sufficient, if proved, to make such driver liable for damages for injury to a guest proximately caused by such negligence. The court herein properly took cognizance of the Arizona law in effect at the time and place of the accident and instructed the jury in accordance therewith.

Testimony in the case was that the car at and immediately prior to the accident was being driven at a speed of about 70 miles an hour. Appellants argued that a verdict which necessarily implies the negligence of defendant driver is unsupported by sufficient evidence because no proof wms offered showing the standard of speed at which Arizona drivers in general ordinarily operate their automobiles. The operation of a ear at a speed of 70 miles per hour cannot be said to be a negligent act, appellants insist, unless it be shown that it is in excess of the speed at which prudent drivers in Arizona are accustomed to drive. The argument is ingenious but without merit. Different legal regulations may exist in the state of Arizona and California as to the speed at which automobiles may be driven, but automobiles are the same and drivers are the same in both states. A California jury does not need to hear evidence as to the speed customs or habits of Arizona drivers, and such evidence would be of no assistance in determining the problem before the jury as to whether or not the driver in this case was negligent. The court properly instructed the jury as to the Arizona law and gave customary instructions upon the subject of the degree of care and prudence such as would be exercised by an ordinarily prudent person under the circumstances disclosed in this case.