Barnett. v. Garrison

NOURSE, P. J.

This is an appeal by defendant from an order granting a motion for a new trial in a wrongful death action after a verdict in his favor. The court granted the motion on the ground of errors in law occurring at the trial, viz.: 1. The giving of instructions upon the defense of assumption of risk; 2. having instructed on that defense the refusal of instructions proposed by plaintiffs upon the burden of proving said defense and upon the presumption that the deceased exercised ordinary care for her own concerns. Appellant contends that the giving and refusal of the instructions in question was not erroneous and at any rate not prejudicial because as a matter of law the evidence was in

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sufficient to establish negligence of defendant or plaintiffs’ right to any recovery.

Plaintiffs, the parents of Imogene Barnett, brought this action for the death of their 18-year-old daughter in an automobile accident.

Decedent at the time of the accident was living at the home of her uncle defendant Jesse Lee Garrison in Seaside, California, and worked as a secretary at Port Ord. Her parents lived together in Campbell, California, but the mother had just obtained an interlocutory decree of divorce. On March 10, 1946, Imogene, her uncle and the uncle’s family left Seaside for a visit to the parents in Campbell in a 1940 four-door De Soto sedan, driven by defendant Jesse Lee Garrison. Past Santa Cruz the fuel pump of the ear failed; defendant Elmer Garrison, a younger brother of Jesse Lee, was called to their assistance and came with a 1935 two-door Chevrolet coach, which was used to tow them back. Jesse Lee fastened the De Soto behind the Chevrolet tying the bumpers together by coiling the tow rope of the De Soto in 10 loops around the center of the bumpers, leaving a 6-inch slack between them. Imogene Barnett and a daughter of Jesse Lee of her age rode with Elmer in the Chevrolet, Jesse Lee and the other members of his family in the De Soto. They drove back the same way they had come with a stop of 15-30 minutes in Santa Cruz to try to find a fuel pump. On a down-grade portion of the highway from Santa Cruz to Watsonville the accident happened. Down the long incline the cars reached a speed of 40 miles per hour, the heavier car pressing against the lighter car in front. Jesse Lee, in the De Soto, braked and thereafter the Chevrolet began to veer to the left over into the center lane of the three-lane road. Jesse Lee braked with more force and when the Chevrolet, although slowing up, still went to the left, he applied the brakes forcibly and at the same time turned his wheels to the right. Notwithstanding the fact that Elmer also braked and tried to steer to the right, his car, whose front wheels, according to his testimony, seemed to be off the ground, went over the embankment at the left side of the road, turning over and throwing the two girls out. The De Soto also rolled over the embankment and fell on the girls, killing them both.