Illingsworth v. Boyd

BARNARD, P. J.

Shortly after noon on July 17, 1932, the plaintiff was injured while riding in an automobile driven by the defendant. It is conceded that the plaintiff was at the time the guest of the defendant and this action is based upon the theory of wilful misconduct. The defendant and her guest started at Pine Knot and were proceeding westerly toward San Bernardino. While rounding a curve some two miles distant from their starting point, the automobile in which they were riding skidded and crashed into a guard rail, resulting in painful injuries to the plaintiff. In this action, which followed, the court found in all respects in favor of the defendant and the plaintiff has appealed from the judgment entered.

The only point raised is that the findings are not supported by the evidence. The findings attacked are to the effect that the respondent was not guilty of wilful misconduct, it being urged by the appellant that such wilful misconduct conclusively appears from the evidence. While the appellant’s brief sets forth certain facts which are said to be shown by the evidence, none of these asserted facts are supported either by a quotation from or a reference to the transcript.

On the other hand, an examination of the transcript discloses facts considerably at variance with those set forth by the appellant, which may be briefly stated as follows: At the point where the accident occurred there was a rather sharp curve which turned to the left as a driver approached from the east, from which direction this car was coming. The pavement at that point was twenty feet wide and some ten or twelve feet to the right of the pavement was a fence or guard rail. The road was straight for at least three-quarters of a mile to the east of this

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curve and a car approaching from this direction would be coming slightly upgrade. One witness testified that this grade was about two per cent. The appellant testified that at a point about one-half mile before they reached the scene of the accident she looked at the speedometer; that at that time they were traveling at approximately forty miles an hour; that she then asked the respondent if she could drive as she knew the road better; and that the respondent said: “No, she knew her car better than I and her brakes were not in very good condition.” A written statement made by the appellant on the day after the accident occurred and signed by her was introduced in evidence, in which she said: “On Sunday, July 17, 1932, Miss Boyd, who had been staying with us at Big Bear, offered to give me a ride in her Ford roadster, to San Bernardino so I could visit my father. She had to be back in Riverside for work later in the day. We left Big Bear at about 1:30 p. m., and started down the State Highway thru Big Bear Valley. We had gone about 1