Miller v. Geary

MR. JUSTICE THOMPSON (R. L.) Delivered the Opinion of the Court.

This is an appeal from a judgment for damages sustained as the result of an automobile casualty.

In the following opinion Edith I. Miller will be referred to as the respondent and Paula Geary as the appellant.

On the night of August 30, 1928, the respondent was riding as a passenger for pleasure with appellant in her Oldsmobile coach from Cloverdale to Hopland along the Redwood highway. The paved portion of the highway is sixteen feet in width with a two-foot gravel shoulder on either side. They were traveling on the outer side of the roadway at a rate of speed of about twenty miles an hour. They were ascending a grade and approaching a left curve in the road. Before reaching this turn of the road, there was an unobstructed view of the roadway ahead of them for a distance of three or four hundred feet. The ladies were engaged in conversation. It was dark. The headlights were turned on. As they approached this curve in the road another automobile suddenly came around the turn toward ■ them. It was traveling downgrade upon the

[575]

proper side of the highway. The respondent testified in this regard: The car was approaching “on the side it belonged on. . . . Q. Well it was over ... to your side? A. No, the 'other side. ... It got by us, and didn’t touch us, I know that.” It passed “on the upper side going south . . . Q. It didn’t attempt to pass you on the right hand side? A. No, sir.” The approaching machine was twenty-five or thirty feet away when the respondent first saw it. Its lights were not blinding. The passing car did not strike the appellant’s machine. There is no evidence that he passed dangerously near the appellant’s car. The appellant turned suddenly to her right. The right front wheel of her machine ran over the edge and they were precipitated into a gulch below the highway. The respondent sustained a broken pelvis together with other injuries. A judgment of $3,910 was rendered in her favor. From this judgment the defendant appealed.

The appellant contends that the findings and judgment are not supported by the evidence. It is asserted that the accident was the result of an attempt on the part of the appellant to extricate herself from sudden peril, which exempts her from damages resulting from a lack of judgment in properly regulating her machine in the emergency, and that she is therefore not guilty of negligence. The appellant relies upon the case of