Hawthorne v. Gunn

BARNARD, P. J.

This is an action for damages for injuries suffered in an automobile collision. As the car in which the plaintiff was riding as a guest entered an intersection and turned to the right, it was struck by a car

[453]

owned and operated by the defendants, and pushed against a bank that lay along the right curb. The plaintiff was thrown forward, suffering the injuries complained of. The car in which plaintiff was riding was a five-passenger car, although at the time there were three people in the back seat and four in the front, three sitting upon the seat itself while the plaintiff was seated upon the lap of a young man who was sitting at the right-hand side of the front seat. The action was tried by the court without a jury, the court finding that the plaintiff was not negligent in riding in the position or manner mentioned; that the driver of that automobile was not negligent in his operation of the car; and that the plaintiff was injured solely by reason of the negligence of the defendants. Judgment was entered for the plaintiff, from which this appeal is taken.

The appellants concede that the evidence supports the finding of negligence on their part, and the sole point raised is that the respondent was guilty of contributory negligence, as a matter of law.

It is argued that it conclusively appears that the respondent was guilty of negligence

per se

in thus riding as the fourth occupant of the front seat and “that in a matter of such extreme variation from the seating accommodations of an automobile, and the very obvious results thereof, there is no need for drawing inferences of fact, but an inference of law obtains, against which the finding of fact of the lower court cannot prevail”. Appellants rely entirely upon the case of

McMahon

v.

Hamilton,

204 Cal. 228 [267 Pac. 546], and certain language therein used in which, as an additional reason in support of the judgment, the court discusses the question of contributory negligence on the part of the plaintiff in the action. As stated by the court, the position on a motorcycle assumed by the plaintiff in that action was hazardous even in the ordinary operation of the vehicle. It was then stated that the plaintiff must be deemed to have assumed the responsibility for any injury to which such dangerous position presumably contributed. Of course, all presumptions were in favor of the judgment. This case is not by any means authority for the proposition that it is negligence