Spring v. McCabe

WASTE, P. J.

This action was brought by plaintiff to recover damages for injuries, alleged to have been occasioned by reason of the careless and negligent operation of an automobile driven by the defendant, in which plaintiff was riding by invitation, and as a result of which she was severely injured. Defendant denied that he was driving at a reckless rate of speed, or operating his car in a careless manner. The case was tried before the court without a jury. Judgment was entered in favor of plaintiff for one thousand dollars, from which defendant appeals.

The accident occurred on the morning of December 25th, on the state highway between Madera and Merced. The automobile, driven by the defendant, skidded off the road

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way and turned over, crushing the plaintiff under the steering wheel, breaking her collar-bone and inflicting other injuries. The record presents an irreconcilable conflict as to the manner and the rate of speed at which the defendant was operating his car. The plaintiff’s testimony was amply sufficient, if believed, to warrant the trial court in finding that the defendant was guilty of negligence in operating his automobile at a rate of speed far in excess of the statutory limitation and without the control as to speed, under the particular circumstances, required of a careful and prudent man. The plaintiff testified that the defendant was drinking whisky; that he drove his automobile at the rate of forty-five miles an hour, once running off the highway; that she was nervous and alarmed, and asked him not to drive so fast; that while it was going at forty-five miles an hour the machine turned over. The defendant testified that he was not driving in excess of twenty-five miles an hour at any time, and denied that the plaintiff at any time during the morning requested him to drive more slowly. He declared that it was a foggy morning; that the highway was slippery at the point of the accident, and that his automobile skidded without any apparent excuse.

Joseph Foster, a witness for the plaintiff, who arrived at the scene of the accident almost immediately and while plaintiff was still under the overturned ear, testified that the roadway was moist but not wet, and that the highway at the point where the accident occurred was in good condition. Several witnesses who were familiar with the road at that point testified that it was a dangerous bit of highway, and that a car going at a speed of twenty or twenty-five miles was as liable to skid as one going at a greater rate of speed. They were also permitted to testify to other accidents of similar nature occurring under similar weather conditions as those described by the defendant as existing at the time of this accident. The defendant, who was an experienced automobile driver, had been over this particular strip of highway many times before, denied that he had any knowledge that it was a slippery or dangerous place.