Gardiner v. Hogue

[256]

THE COURT.

Plaintiffs are husband and wife. The above action was brought to recover damages for injuries received by plaintiff last named which were alleged to have been caused by defendant’s negligence. A jury returned a verdict against defendant, who has appealed from the judgment entered thereon. He was the owner and operator of an automobile in which plaintiff was riding as a guest. While descending a grade on Hampton Road in Piedmont defendant lost control of the car, which collided with a metal electrolier, causing the injuries. The grade was about thirteen per cent; the foot-brakes were defective and inadequate to control the car on the grade, and their condition was known to defendant. The car was started down the grade in second gear, but this was insufficient to hold the car in control, and the foot-brakes were then applied, without effect. Defendant then attempted to shift into low gear, but failed

to

effect the change, with the result that control was completely lost and the car was left running free in neutral. No attempt was made to apply the emergency brakes. Defendant admitted that the application of these brakes would probably have stopped the car, but claims that being suddenly confronted with an imminent danger he became frightened and failed to apply them. He contends that the evidence was insufficient to sustain a finding of gross negligence, and that in view of the peril in which he was suddenly placed he was required to exercise only that degree of care which a reasonably prudent person would have used under similar circumstances.

Gross negligence has been defined as a want of slight diligence

(Kastel

v.

Stieber,

215 Cal. 37 [8 Pac. (2d) 474];

Taylor

v.

Cockrell,

116 Cal. App. 596 [3 Pac. (2d) 16]). The degree of care necessary to relieve a party from the implication of gross negligence, or what amount will sustain the charge, is necessarily a question of fact dependent upon the circumstances of the particular case, and is generally a question for the jury