Graban v. Gonzales

MARKS, J.

This is an action for damages suffered by respondent in a motor vehicle accident on highway No. 99 in Kern County, near the Grapevine Creek bridge in the mountains between Lebec and the Grapevine station. The accident occurred on June 27, 1931, between 3 and 4 o.’clock in the afternoon. The day was dry and clear. Respondent recovered judgment, from which this appeal is taken.

In the oral argument before this court, counsel for appellants expressly waived reliance upon any of their specifications of error except the failure of the trial court to give one of their requested instructions. This instruction concerned the law governing their liability if the accident and injury to respondent was caused solely by a latent defect' in devices and appliances attached to a motor vehicle which had been purchased from reputable manufacturers, and which latent defect could not be discovered by the ordinary inspections usually made. From the view we take of the case we may assume that the proposed instruction properly stated the law and should have been given by the trial judge, and still we conclude that under the evidence before us the refusal to give it was not prejudicial error requiring a reversal of the judgment. We are satisfied that the record discloses such carelessness and negligence on the part of Angel Bracamonte, the driver of the truck, entirely independent of any latent defect, if any, in the machinery under his control, so that the failure to give the instruction had little if any bearing upon the verdict returned.

The truck was owned by Juan Gonzales and was being operated by Bracamonte, his employee, who was acting in the scope of his employment and upon the business of his employer. The truck was a three-ton GMC, about eight and one-half months old, and up to the occasion in question had given no trouble in its operation. Its brakes were in good

[659]

repair. In addition to the standard transmission which had four speeds ahead there was installed a compound transmission which gave additional speeds ahead, and in descending a grade, additional braking power through the compression of the engine. The compound transmission was operated by a lever separate from the regular gear shift lever. The compound transmission lever descended through the floor boards of the truck and was attached to two arms in the form of an inverted “Y”, which operated the gears through connecting rods. These arms were grooved to receive the lower end of the lever and were attached to it by a bolt which was secured by a lock nut.