Elm v. Bennett

KNIGHT, J.

Appellant, a high school student, accompanied by two girl companions named Astrid Elm and Adeline Harding, was driving a Ford coupe along what is called the Copper King Road, near Fresno, about 4 o ’clock in the afternoon, returning from a high school picnic; and while rounding a curve in the road on a slight descent in the grade, at a speed of between twenty and twenty-five miles an hour, the coupe ran into a rut in the left side of the road, caused by recent rains, and after swerving across the road climbed, a slight bank, ran into a tree standing three or four feet distant from the road, and overturned, causing the death of Miss Elm. As a result of the accident, the parents of the deceased brought this action for damages, and upon trial before the court sitting without a jury, the court found, as alleged in the complaint, that the accident was proximately caused by appellant’s negligent operation of the automobile, and further found that there was no contributory negligence on the part of the deceased. Thereupon judgment was entered in favor of the respondents for two thousand five hundred dollars, from which judgment the appeal herein is taken.

Appellant concedes that the evidence relating to the question of her negligence is sufficiently conflicting to preclude an inquiry into the trial court’s finding on that issue,

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but she contends, as sole ground for reversal, that the evidence shows without conflict that when' the coupe struck the rut Miss Elm negligently contributed to the accident by grasping the steering wheel. This contention is based alone upon the testimony of appellant, the essential part of which was as follows: “As we hit the rut Miss Elm grabbed the wheel. That pulled me to the other side. We hit the tree, and that was the last I knew until we got up . . . ” However, in apparent contradiction of appellant’s testimony, Miss Harding, who was seated in the coupe between appellant and the deceased, testified that although she could not say “absolutely” that Miss Elm did not reach for the steering wheel, she did not see her do it, and that in order for Miss Elm to have done so it would have been necessary for Miss Elm to have reached in front of her. Furthermore, appellant admits that she did not see the tree until the coupe was within a few feet of it; that at no time did she apply the brakes, and that after seeing the tree she did not “do anything to avoid hitting it, ’ ’ because, as she explained, they “were too close to it.” We are of the opinion that the foregoing evidence presents a fair and reasonable ground for a difference of opinion as to whether or not Miss Elm interfered in any manner with the operation of the automobile, and therefore raises such a conflict as to preclude this court from interfering with the trial court’s decision thereon