Tomlinson v. Kiramidjian

TURRENTINE, J.,

pro

tem.

Plaintiff, as guardian

ad litem

of Betty Daslyne Brown, a minor, brought suit against defendants for damages arising out of the death of the father of the minor, who was killed while riding in an automobile as the guest of the defendants. George Christian was operating the automobile with the consent of defendant Kiramidjian, the owner. The cause was tried before a jury, which rendered a verdict for the plaintiff. Prior to submitting the matter to the jury, defendants moved for a directed verdict. This motion was denied. After verdict, and before entry of the judgment, motion was made to vacate and set aside the verdict of the jury and enter a judgment for defendants notwithstanding the verdict. The motion for judgment notwithstanding the verdict was made in the alternative form asking therefor, and reserving, if that be denied, the right to apply for a new trial. On motion for new trial judgment on the verdict was set aside and judg

[420]

ment notwithstanding the verdict was made and entered for the defendants. Plaintiff appeals from such judgment.

The motion for a directed verdict and motion for judgment notwithstanding the verdict were made on the ground of the insufficiency of the evidence to justify the verdict “because it appears from the whole evidence in the case that the negligence of the deceased, plaintiff’s ancestor, proximately contributed to his death”.

It appears from the evidence that at about 1 o’clock on the afternoon of August 25, 1930, the deceased met defendants and served them with beer; that the three of them drank a couple of bottles apiece between that time and 3 o’clock. At about 3 o’clock defendants left in an automobile and drove to a place about two miles distant. The deceased did not go with them. Upon arrival they drank more beer, returning about 4 o’clock, where they again joined deceased. It does not appear that deceased knew of their drinking at this other place. All three again drank beer, either a glass or a bottle apiece. They also had lunch. At about 5 o’clock they left for deceased’s home, the defendant Christian driving, with all three sitting in the front seat. Christian drove some distance and at the request of deceased stopped at a place, where he got two bottles of beer, putting them in the car. While there they each drank another glass. They re-entered the automobile with the same seating arrangement, Christian driving, and did not stop again until the accident occurred. On passing an automobile, Christian, while driving between fifty-five and sixty miles an hour, turned and waved his hand at the occupants of the other car. While he was so engaged the automobile he was driving swerved onto the left-hand side of the road, he glanced forward, turned it back to the right, it went off the highway and overturned, causing the death of deceased. The car was going about fifty-five miles an hour at the time of the accident.