Benjamin v. Noonan

PRESTON, J.

In this cause the judgment for plaintiff is affirmed. The action is one to recover damages for personal injuries received as the result of an automobile accident which occurred in San Francisco on August 14, 1926, at about 10:40 P. M., while plaintiff was riding as his guest in the automobile of appellant John F. Noonan. Said appellant, with plaintiff in his car, was driving west on Irving Street at a speed varying from twenty to thirty miles an hour; at about the same time appellant Harold Gallagher, at the wheel of a Studebaker roadster, accompanied by defendant H. C. Gallagher and another person, was proceeding south on Forty-eighth Avenue at a slow speed, perhaps fifteen miles per hour, having stopped just previously to avoid hitting an obstruction in the street. The night was very foggy and the two automobiles collided where Forty-eighth Avenue intersects Irving Street. Plaintiff was thrown from the car and severely injured in the manner hereinafter described. She subsequently commenced this action for damages, including as defendants the drivers of both machines. Trial was had before a jury and a verdict was returned in her favor for the sum of six thousand dollars. Judgment followed, from which both defendants Noonan and Harold Gallagher have appealed, claiming, first, that plaintiff was guilty of contributory negligence as a matter

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of law, and, second, that the court erred in the giving of-certain instructions and the withholding of others requested to be given.

The claim of contributory negligence is based upon the argument that notwithstanding the foggy weather and poor visibility, plaintiff negligently permitted her host to travel the entire distance between Thirteenth and Forty-eighth Avenues, on Irving Street, a residential and business district, at a speed ranging from twenty to thirty miles an hour, without the slightest protest, remonstrance or request that he either diminish his speed or permit her to leave the car, which failure on her part to either so speak or act amounted to contributory negligence as a matter of law and that the court erred in refusing to give a requested instruction bearing upon this point. This claim is urged in the face of plaintiff’s undisputed testimony that she had never driven an automobile and was not qualified to judge the safety or nonsafety of driving conditions, and that, although she was of a nervous temperament, the speed at which appellant Noonan drove on the night in question did not seem to be excessive or fast enough to arouse any sense of fear in her. It is unnecessary to discuss the point at length. This very situation was before us and received our full consideration in the recent case of