Lincoln v. Quick

BARNARD, P. J.

This is an appeal from a judgment in favor of the plaintiff for damages arising from an automobile accident which occurred on July 13, 1931, while the plaintiff was riding as the guest of the defendant. At that time, section 141% of the California Vehicle Act required the plaintiff in such a case to establish intoxication, wilful misconduct or gross negligence on the part of the defendant in order to recover, and the respondent contends that gross negligence was here established.

The appellant did not appear at the trial and the only evidence as to how the accident occurred is found in the testimony of the respondent. He testified that they were riding along a paved highway on a clear dry day between 4 and 5 o’clock in the afternoon; that “we were driving so fast that I know I was very uneasy”; that he told the appellant not to go so fast; that he had been in automobile wrecks before and “most any speed” would make him feel uneasy; that if a car was going above fifteen miles an hour he would rather not be in it; that the appellant did not slow up as the result of his remonstrance; that he did not know how fast the appellant was driving at the time of the accident; that he was unable to estimate how fast the car was going; that he did not know how the accident happened; that just prior to the accident he saw no other cars and heard no impact; and that as they were riding along he felt a sudden shock, became unconscious and when he regained consciousness he was in a hospital. He also testified that on the next day the appellant told him “that the car left the road and turned over, and told me how badly the car was damaged”.

The complaint alleges that the defendant drove and operated his automobile “at a speed in excess of fifty-five miles per hour, and so recklessly, carelessly and negligently

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that said automobile left the highway and turned over approximately three times”, and that as a consequence the plaintiff sustained certain injuries. The court found that on the occasion in question, while the plaintiff was riding as a guest of the defendant, the defendant drove and operated his automobile “at a fast rate of speed so recklessly, carelessly and negligently that said automobile left the highway and turned over”.

The direct evidence here presented was not sufficient to show negligence in the matter of speed