Boone v. Bank of Am. Nat'l Tr. & Sav. Ass'n

WASTE, C. J.

This is an action for damages for the wrongful death of plaintiff’s adult son, resulting from a collision between decedent’s motorcycle and the rear end of a wagon loaded with farm implements, being driven by the defendant Angels along a public highway in Merced County. The defendant bank held a chattel mortgage on the wagon

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and its contents. It was plaintiff’s theory, in joining the bank as a defendant, that Angels was the agent of the bank. This theory is founded on the. fact that Angels, pursuant to directions from the bank and because of his financial inability to further carry on his farming operations was, at the time of the accident, proceeding to a warehouse for the purpose of there storing the wagon and its contents in order to preserve them as security under the bank’s chattel mortgage. The conclusion we have reached, and the fact that the jury brought in a verdict against the plaintiff and in favor of both defendants, makes it unnecessary for us to determine whether plaintiff upon the trial had satisfactorily established the relation of principal and agent between the defendants. For present purposes we shall assume, without deciding, that this relationship existed between the parties.

Upon this appeal from the judgment the plaintiff contends that the court below committed reversible error when, over objection, it permitted two of the defense witnesses to testify as to the decedent’s habit or custom for an extended period just prior to the accident -of repeatedly and continuously driving his motorcycle at excessive rates of speed over and along the highway upon which and in the vicinity at which the accident occurred. With this evidence excluded the appellant urges there is no evidence of contributory negligence on the part of the decedent.

It appears that both vehicles were proceeding along a straight highway in a northerly direction when decedent ran his motorcycle into the rear of the wagon being driven by the defendant Angels. The accident occurred shortly after 6 o’clock on the evening of December 17, 1931. An almanac introduced in evidence indicates that the sun had set at 4:41 P. M. on that day. There is evidence to the effect that it was “dusk” or “almost dark” at the time of the accident. The defendant Angels admitted on the stand that his wagon was not equipped with a light. It is undisputed that the headlight on the decedent’s motorcycle was lighted prior to and at the time of the accident and was capable of throwing a beam of light a considerable distance ahead of the vehicle. It was also shown that a motorcycle traveling at a speed of forty-five miles an hour, the maximum legal rate of speed, can be stopped within a distance