Barber v. Gordon

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MR. JUSTICE PLUMMER Delivered the Opinion of the Court.

The actions above named were consolidated and tried as one. Both actions were prosecuted to recover damages for injuries alleged to have been suffered in an automobile collision. The complaint in both cases alleged the negligence of the defendant. The defendant in both cases set out, among other matters, inevitable accident as one of the grounds for her defense.

The record shows that the appellants were driving northerly on a public highway in the county of Ventura. At the same time, respondent was driving southerly. As the respective parties apiiroached a turn in the road, the automobiles collided. The jury found in favor of the defendant in both actions. The defense of inevitable accident was based upon the alleged locking of the steering mechanism of the car driven by the respondent. According to the testimony of the respondent, at the time of the collision the steering mechanism became locked so that it was impossible to turn the automobile to the right in rounding a curve, in order to avoid the collision.

The first point made by the appellants for reversal is directed against the pleadings, it being alleged that the defense of inevitable accident or casualty does not specifically set forth the basis of such inevitable accident or casualty, in order to constitute a defense. The record shows, however, that no demurrer was interposed on the ground of uncertainty or ambiguity, and no attempt made to require the respondent to set forth more specifically the alleged grounds of defense. Having gone to trial without raising any question as to the sufficiency of the pleadings or of the answer interposed in each cause, we think it is now too late to raise questions which only could have been raised by demurring specially. While practically admitting a conflict in the evidence, it is urged on the part of the appellants that the testimony is such that a new trial should be ordered.

In order to sustain the defense of inevitable accident or casualty the defendant must show that reasonable diligence has been exercised, and that the occurrence was such as could not have been reasonably anticipated. In volume 1, page 260, Oyc. of Automobile Law by Blashfield, we find the following which we think applicable to this case:

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