O'Nellion v. Haynes

SPENCE, J.

Plaintiff sued for damages for personal injuries received while riding as a guest in the automobile driven by defendant. Upon a trial by jury plaintiff recovered judgment in the sum of $25,000, from which judgment defendant appeals.

Before discussing the main contention of appellant, we will first consider other points raised in the briefs. In the opening brief appellant contended that the evidence was insufficient to support the implied finding of gross negligence. This contention is without merit. We believe that counsel for appellant practically so conceded in his oral •argument, as he indicated at that time that the evidence was set forth in the briefs only to show that the case was a close one and that the jury should have been discharged •because of "the incident to, which reference will be hereinafter made. However, we -cannot even agree that the case was a close one. [¡

[331]

The accident happened at night while appellant was driving his automobile in a southerly direction along the Skyline Boulevard about four miles south of Daly City. Respondent and two other guests were riding with appellant in his car, which “side-swiped” another car proceeding in the opposite direction. The paved or oiled section of the highway was twenty-nine feet in width with a shoulder about three feet in width on either side. The collision occurred on a straight stretch between a curve in the highway and a culvert approximately 650 feet south of said curve. This stretch of road had a six per cent drop toward the south. The evidence showed that appellant was driving his car between fifty and sixty miles per hour over the protests of all three of his guests and that the machine was swaying from side to side as the result of the excessive speed. Appellant admitted that he had been asked not to drive so fast but had continued at the same speed. He further admitted that he was going between forty and fifty miles per hour when he first saw the other car at a distance of 450 feet; that he kept his foot on the accelerator all the time going down this six per cent grade; and that he did not know whether his car went over the left side of the road while driving between the curve and the point of collision. The testimony showed that prior to the accident the other car was on its right side of the highway and that appellant’s ear was straddling the white line marking the center of the highway. Appellant’s testimony on this subject was rather uncertain and unsatisfactory. He would not testify that the other car was on its left side of the highway but his testimony only went as far as to indicate that just prior to the collision it was running in a straight course “right on the center line”. He was asked, “You mean by that that the car was over the center line, or the car was on the center line.” To which he answered, “The left wheel was running, I would say, almost on the white line.” In our opinion the conduct of appellant in continuing to drive at an excessive rate of speed as he approached in close proximity to the oncoming car shows an entire want of care on his part and a clear case of gross negligence.