Anderson v. Pickens

BURROUGHS, J.,

pro tem.

The plaintiffs are three minor children of one Harry Anderson, now deceased. They instituted this action by their guardian

ad litem,

to recover damages for the death of their father, through the alleged negligence of the defendant. The cause was tried by the court with a jury, and a verdict rendered in favor of the plaintiffs in the sum of $15,000. Prom the judgment entered in accordance with the said verdict the defendant has appealed.

The first assignment of error is based upon the claim that the deceased was, as a matter of law, guilty of contributory negligence, in riding with an intoxicated driver. The evidence discloses that the defendant C. J. Pickens and one H. L. Rambo left Oakland, California, on August 13, 1929, in a De Soto coupe automobile; that they were going on a hunting trip to Mendocino County; that they reached the town of Point Arena in said county about 8 o’clock in the evening. They then went to a hotel and had dinner. They stayed at that place for some time and then went to the house where said Harry Anderson lived and took him with them for the hunting trip. They left Point Arena at about 10:20 P. M. the same evening and went to a place called the Pire Lookout Station on Signal Ridge, and stopped there for a while and talked to the lookout man. They then started for a ranch called “Zinnis Ranch”. The road over which they traveled was a very narrow, twisting, mountainous road. About three miles from the said station the car, instead of following a turn in the road, traveled straight •ahead and ran over the grade and down some three hundred feet, and, apparently, in its descent turned over several times. Harry Anderson was killed and the other occupants of the car were injured.' The accident occurred about twenty

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minutes before midnight. There was some evidence in the record that Harry Anderson was driving the car, but the clear preponderance thereof shows that it was driven by the defendant C. J. Pickens. Upon the question of the intoxication of the driver Pickens, there is a conflict in the evidence, and the matter was properly submitted to the jury. The main question in dispute is whether or not said Harry Anderson knew or had reason to believe that the defendant Pickens was, by reason of intoxication, unable to drive the automobile. When Pickens and his companion Rambo left Oakland, they had with them a quantity of intoxicating liquor, and both admitted that from time to time on the trip between Oakland and Point Arena they had drunk considerable, gin. They also had intoxicating liquor while they were eating their dinner at the hotel in Point Arena. Anderson was not with them until after they had finished their dinner, when, as heretofore stated, Pickens drove to the place where Anderson lived and he then joined the party in the automobile. It is clear from the evidence that Rambo was intoxicated. Leroy Woodhead, the city marshal of Point Arena, testified that he stopped the party while they were all three in the car and told them that Rambo could not drive the ear because he was intoxicated. Mr. Anderson assured him that Rambo would not drive, but that Pickens would. Mr. Woodhead, in answer to the following question: “And Mr. Pickens was in such condition that you were content for him to drive? and he answered: “Yes, I didn’t think he was so drunk he could not drive.’’ The defendant Pickens, testified that after leaving Point Arena he changed places with Harry Anderson and the latter drove the car. This witness also admitted that he had had a number of drinks but he thought he was all right. It is claimed that as a matter of law, Anderson knew that the defendant Pickens was intoxicated, and that even though Anderson was not driving the car, he had an opportunity to alight therefrom, and failing to do so, he was guilty of contributory negligence. It is clear from all of the evidence that Anderson was not intoxicated, nor, so far as the record discloses, had he been drinking. His mind was therefore clear. Appellant relies upon the case of