Fenstermacher v. Johnson

PULLEN, P. J. This appeal is from a judgment awarding plaintiff damages for the death of his daughter who was killed in an automobile accident which occurred in March, 1931. On the day in question defendant, accompanied by three companions, all being students of the University of Oregon, were on their way from Eugene, Oregon, to Berkeley and San Francisco. They had left Eugene about 3 o’clock in the afternoon the day before in the Ford roadster of defendant; defendant and W. C. Reed occupying the front seat and Helen C. Fenstermacher and Bernice Williamson occupying the rumble seat. •

They had, according to their plans, driven all night and about sunrise were proceeding southerly along the Pacific [693]highway about three miles south of Corning, when the car turned over, resulting in the death of Miss Fenstermacher, daughter of plaintiff herein.

At the point of the accident the highway was straight and level for' several miles in both directions. The paved portion of the highway was approximately fifteen feet in width with gravel shoulders approximately fifteen feet wide bn each side. There was a slight elevation of an inch or two where the pavement rested upon the gravel shoulder. At the time of the accident the pavement was dry and there was no other traffic in the immediate vicinity. When the party had reached this point south of Corning the car was driven entirely off to the right of the pavement on to the gravel shoulder and traveled about 500 feet along this shoulder at a speed of from 40 to 45 miles per hour and was then turned to the left to return to the pavement when the left front wheel twisted or buckled and the tire, after dragging along the pavement, apparently blew out, or the wheel collapsed causing the frame to drop, whereupon the car turned over once or more and came to rest on its side on the left of the highway. The occupants were thrown from the car and Miss Fenstermacher received injuries resulting in her death very soon thereafter.

Some evidence was introduced in an attempt to show that Eeed, one of the passengers, had been drinking. There was no substantial evidence of this nor of liquor being found in the car. The smell of alcohol about the automobile seemed to have been successfully explained by the presence of an anti-freeze mixture in a can or bottle in the car which had been drained from the radiator of the car by defendant preparatory to making the trip to Berkeley.

For reversal of the judgment founded upon the verdict of the jury in favor of plaintiff, appellant urged that by the amendment to section 141% of the California Vehicle Act, at a time subsequent to the accident and prior to the trial of the action, an action based upon gross negligence had been taken away and the only ground upon which a guest, or in case of death the representative, could recover, was for intoxication or wilful misconduct; this contention, however, has been definitely determined by the Supreme Court in the case of Stotts v. Blickle, 220 Cal. 225 [30 Pac. (2d) 392], contrary to this contention which