Johnson v. Ostrom

THOMPSON (R. L.), J.

The plaintiff obtained judgment for $15,000 damages for personal injuries sustained in an automobile casualty. The cause was tried with a jury. Upon motion, the court granted a new trial on the grounds that the amount of damages is excessive and that the judgment is not supported by the evidence. Prom this order granting a new trial the plaintiff appealed.

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On the evening of September 22, 1930, plaintiff and three other men accompanied the defendant as guests in his Ford sedan on a fishing expedition from Escalón to the Stanislaus River. Only one member of the party attempted to fish. They lay about on the sand, eating, drinking and telling stories. One witness infers they had an uproarious time. The plaintiff fell into the river, soaking his clothing to the waist. There is a flat contradiction of witnesses regarding the presence of liquor. The defendant admits they had a little wine. One other witness admits they drank wine about the campfire. The plaintiff denies that they had wine. Axel Larsen, who testified in behalf of the plaintiff, also denies they had liquor. William Hammerquist, who was called in rebuttal by the defendant, testified that both Larsen and Axel Olsen told him they had a gallon of wine at the party.

About 1 or 2 o’clock in the morning they started on the return trip to Escalón. The night was bright, the weather clear and the pavement dry. The defendant was driving the machine. Axel Larsen sat by his side in the front seat. The plaintiff and the two other companions rode in the rear seat. They drove at a moderate rate of speed from the river to the Tracy-Modesto state highway over a dirt road, a distance of three-quarters of a mile. Upon reaching the concrete highway, they turned north toward Escalón. Several of the witnesses, including the plaintiff, testify that after they reached the highway the defendant increased the speed of his machine until he was running at the dangerous rate of fifty or sixty miles an hour; that the car swayed from side to side traveling all over the concrete portion of the highway, and sometimes out upon the shoulders thereof; that he was warned against this excessive speed, and the plaintiff demanded he either decrease the speed of the ear or let him out to walk; that just before reaching a concrete culvert the car was running on the left-hand shoulder of the roadway and in pulling it back upon the paved portion of the highway the car skidded and upset on its left side, rolling over twice and landing about the middle of the bridge. There is no evidence of any mechanical defect in the machine. After the accident the right rear wheel was found to be twisted. The evidence quite clearly indicates that in returning to the pavement the wheels of the machine