Forsman v. Colton

PULLEN, P. J.

This in an appeal from a judgment of nonsuit in an action alleging wilful misconduct, brought by plaintiff against defendants.

The court may grant a nonsuit only when, disregarding conflicting evidence and giving to plaintiff all the value to which it is legally entitled, therein indulging in every legitimate inference which may be drawn from the evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict or judgment in his favor if such were given.

(Perera

v.

Panama Pacific International Exposition Co.,

179 Cal. 63 [175 Pac. 454].)

[99]

It therefore becomes necessary in order to pass upon the ruling of the court to review the evidence introduced by plaintiff and determine whether or not there was sufficient to support a verdict in her favor.

About 2 o’clock of an afternoon a few days prior to Christmas, 1931, defendants, husband and wife, invited plaintiff to accompany them into the mountains to get a Christmas tree. The invitation was accepted and the three set out in defendants’ ear. They reached their destination over a narrow mountain road without mishap, and found a tree suitable for their purpose. On the way home Mr. Colton was driving, and seated next to him was. Mrs. Colton, and on the outside was Mrs. Forsman. The return was made over the same narrow mountain road they had traveled in going out. The road was muddy, some snow lying about in spots, but the sun was shining and they were traveling downgrade about ten miles an hour. They had not proceeded far on the return trip when on a turn at one of the wider portions of the highway, the ear left the road, turned over and injured plaintiff.

There are two versions of the cause of the accident. Mrs. Forsman testified they were driving slowly, and immediately before they reached the spot where the car went over the bank there was a lull in the conversation, and the car began gradually to pursue a course from the right to the left side of the road for a distance of about thirty feet. She turned to look at the driver and observed his eyes were closed, his head bowed and the car heading directly toward the embankment. Whether she made an outcry or not she did not remember, for in the next instant they were over the edge of the road, and the car lying on its side about six feet below the grade. Colton, the driver, denied that he was asleep. He admitted, however, that he had the night before attended a meeting of an organization of which he was a member, and the only sleep he had obtained was upon a work bench at his place of employment. He testified he was driving slowly, not over ten miles an hour; the road was muddy and slippery and as he approached the turn where the accident occurred the left wheel of the automobile got into the soft dirt on the left side or shoulder of the road; as he attempted to bring the car back again into the road the wheel mired so deeply into the soft mud that the car