Spencer v. Scott

THOMPSON, Acting P. J.

Merle B. Peterson has appealed from a judgment of $5,473 and costs which was rendered against him in an automobile casualty case. The plaintiff was injured while riding with him as a guest. It is asserted the evidence fails to support the finding of the trial court that the accident occurred through the wilful misconduct of the appellant.

The appellant and Miss Laura Scott drove from Merced to Berkeley in a Dodge sedan automobile owned by her father. Just prior to leaving Merced the brakes of the machine were relined and adjusted at a garage. After those repairs were completed Miss Scott noticed that the brakes were still “a little loose”. She returned to the garage the same afternoon for gasoline and told the mechanic that the brakes seemed to be too loose. She did not direct him to again adjust the brakes, but she assumed that he did so. The brakes were still too loosely adjusted. She testified in that regard: " They were a little tighter, but weren’t tight enough when I started on the trip. ’’ The following day she drove the car to Berkeley. The appellant accompanied her. On the way to Los Banos she discovered that the brakes were still “a little bit loose”. It was necessary to force the lever nearly down to the foot-board to stop the machine. She informed Mr. Peterson of

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that defect. The car also had an emergency brake which was in good mechanical condition. She said she did not notice that an application of the brakes caused the machine to pull away from a straight course toward either side.

At Berkeley the following day, Miss Scott picked up her sister and her friend, the plaintiff, Mrs. H. K. Spencer. They started about 12:30 P. M. to drive back to Merced by way of San Jose. It was raining and the pavements were wet. The appellant, Merle B. Peterson, was driving the car. Miss Scott sat by his side. The respondent occupied the rear seat. Mr. Peterson testified regarding the condition of the brakes:

“Q. And when you applied the brakes the first time, there was a tendency to pull to the left? A. Just a little. . . . Q. But they were out of adjustment, is that the way you describe it? A. Well, slightly out of adjustment to the extent that one brake may have been a little tighter than the other. ’ ’

It had ceased raining but the pavement was still wet. As the vehicle left San Jose on a three-lane highway, a passenger bus traveled ahead of it at the rate of 25 or 30 miles an hour. The appellant was driving at the rate of about 45 miles an hour. He may have reached a speed of 50 miles an hour. A truck and trailer was approaching from the south along its proper easterly lane. An automobile driven by Laura Griffith was following behind the truck and trailer in the easterly lane at a distance of about 200 feet or more. The center lane was then unoccupied. A couple of other vehicles passed, going north, along their proper side of the highway. There was then no other traffic in that vicinity. As the appellant’s car reached a point about 250 feet behind the passenger bus, which was traveling comparatively slowly, Mr. Peterson, realizing he would soon overtake it, released his accelerator, and reduced the speed of his ear. He made no attempt to pass the bus, nor to turn his machine into the center lane. There is no evidence that he applied the brakes forcibly as in an emergency. There is no evidence of an emergency until after the brakes were applied. The appellant merely slackened the speed of his machine as he approached the bus which preceded him. He released the accelerator when he reached a point about 250 feet behind the bus. He began to apply his brakes when he was about 80