Goodwin v. Goodwin

WILLIS, J.,

pro tem.

This is an appeal from a judgment for damages entered in favor of a guest on a finding of gross negligence in the operation of an automobile.

On February 12, 1931, in the forenoon, appellant Robert B. Goodwin was driving an automobile, of which appellant Nellie Goodwin was the owner and with her permission, southward on a state highway a few miles south of the city of San Jose. With him as his guest was his uncle, Oscar B. Goodwin, respondent herein. The automobile was being operated on its right side of the road at about twenty-five miles per hour, in a fog which obscured the general view and caused moisture to impair the view through the windshield except where a wiper was working. Under such circumstances appellant—the driver—first saw another automobile approaching from the opposite direction on its right side of the road, at a distance of about one hundred feet and between two and four feet from the white center line of the highway, these two vehicles being the only ones using that part of the highway at the time. To appellant, the other automobile appeared to be weaving in its course on its right side of the road, and thinking that it would come over on his side, he turned his automobile to the left, across the other side, intending to run off among some trees on that side and thus avoid a collision. He testified that he did this because he could see to his left but could not see anything on his right on account of the fog and moisture on the windshield on that side. The other car kept on its course on its right side, with a resulting collision on the east half of the road, the right front part of the opposing automobile striking the right rear corner of appellant’s car. As a consequence, re

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spondent was seriously injured, and from the ensuing judgment for damages this appeal is taken.

The complaint charged appellant Robert B. Goodwin with gross negligence under the provisions of section 141% of the California Vehicle Act as it then read, and sought to place responsibility also on appellant Nellie Goodwin as owner, under the terms of section 1714% of the Civil Code. Appellants raise two points on this appeal, first, that the evidence is insufficient to justify the findings of gross negligence, and second, that no vicarious responsibility of an owner is created by section 1714% for injuries to a guest of the driver due to gross negligence of the latter in operating the owner’s automobile under permission.