Shields v. King

PRESTON, J.

The judgment entered in each of the above-entitled cases is hereby affirmed. The reasons impelling this conclusion are properly set forth in one opinion as by stipulation of the parties, the actions were tried together before a jury and both appeals by defendánt argued in a single set of briefs.

On November 22, 1926, by reason of an accident which resulted from defendant’s alleged negligence and failure to use ordinary care in the operation of his automobile, plaintiff Bertha A. Shields received severe personal injuries for which by said first case, S. F. No. 13012, she and her husband seek to recover damages; the second action, S. F. No. 13013, is for consequential damages suffered by the husband. The jury in cause S. F. No. 13012 returned a verdict upon which judgment was entered for plaintiffs in the sum of six thousand dollars, and in cause S. F. No. 13013, returned a verdict upon which judgment was entered for plaintiff in the sum of eight hundred dollars. Defendant has appealed from both judgments, urging as his sole ground for reversal thereof that the undisputed facts established by the evi

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dence show that plaintiff Bertha A. Shields was guilty of contributory negligence as a matter of law. The word “plaintiff” where hereinafter used will refer to the plaintiff Bertha A. Shields. The following is a brief

resume

of the facts:

On the date above mentioned said plaintiff, a woman of approximately sixty years of age, was en route by automobile from Hollister to Napa, California, as the guest of defendant, the husband of her stepdaughter. Defendant’s wife and son were also with him on the trip. Defendant was driving; plaintiff occupied one of the back seats. The day was cloudy and rainy. Between San Rafael and Black Point, at a place along the sloughs where the road was wet and slippery, with defendant driving at a good rate of speed,possibly thirty-five or forty miles an hour, the car skidded and went over the embankment, thereby rendering plaintiff unconscious and causing the severe and permanent injuries of which she complains. Plaintiff, who was not seated within view of the speedometer, testified that she had no fear of defendant’s driving nor did the speed of the machine seem excessive to her, until the latter part of the trip. Then, although he failed to heed her warning or to slacken his speed, she twice took occasion to caution him, saying the first time: “Clement, don’t drive so fast on the wet pavement,” and again saying about ten minutes later, and but a short time before the accident: “Clement, don’t drive so fast. We had better be out longer than not to get home at all.”