Norton v. Puter

THOMPSON, J. The defendant has appealed from a judgment of $3,500 which was rendered against him for wilful misconduct in the operation of his automobile, resulting in an accident and serious injuries sustained by the plaintiff, who was riding as a guest in his machine.

The plaintiff and her roommate, Miss Nichols, together with a number of other persons, attended a party the night of November 18, 1931, at the defendant’s home, three miles south of Crescent City near the Redwood Highway. At 5 o’clock the following morning the defendant and his son, Rex, together with the plaintiff and Miss Nichols, started to return to Crescent City in his machine. The defendant drove the car. The plaintiff sat with him in the front seat. His son and Miss Nichols occupied the rear seat. It was raining and the paved highway was slippery. The defendant drove from his home very rapidly along a private lane to the highway. The plaintiff testified in that regard, “When he got in the car he backed out and shot down the lane.” There is substantial evidence that when they reached the highway the defendant drove northerly along the pavement at the rate of fifty-five miles an hour. The car was swerving from side to side. As they approached a turn in the highway, where the defendant’s car had previously skidded, his view of the highway was obscured by rain which had accumulated on the windshield, the automatic wiper having ceased to operate. The defendant was warned by his son not to drive so fast. The defendant admitted that he “was going pretty fast all right”. In spite of the warning and the danger of the turn in the road where he admitted “I have had one or two pretty close calls on that road that I had not forgot,” in spite of the [256]slippery condition, of the highway, the swerving of the car and his obscured vision on account of the rain and the blocking of his windshield wiper, the defendant failed to diminish his speed. The machine skidded at the turn of the road and ran into the ditch by the side of the highway. Miss Nichols testified that the ear rolled over three times, although it finally landed on its wheels. The plaintiff was seriously injured, including a fractured and dislocated pelvis and numerous lacerations.

The complaint fails to allege in terms that the defendant was guilty of wilful misconduct, but paragraph III of the amended complaint does charge that “It was dark, rain was falling and the said highway and the pavement thereon were wet and slippery, . . . Defendant drove and operated his automobile at said time and place ... at a speed of 55 miles per hour or thereabouts, and that as a proximate result of said rate of speed . . . under the circumstances as hereinabove alleged, said automobile left the paved portion of said highway and overturned . . . causing her (the plaintiff) great and grievous injuries as hereinbelow set forth.” The cause was tried by the court sitting without a jury. Findings were adopted by the court that “all the allegations set forth in paragraphs I, II, III and IV of plaintiff’s amended complaint, as amended to conform to the proof, are true”, that the allegations of the answer in conflict therewith are untrue, and that “plaintiff is entitled to judgment against defendant in the sum of $3,500”. Judgment was rendered accordingly. From that judgment the defendant has appealed.