Barcroft v. Adkins

SHINN, J., pro tem. Action for damages sustained in an automobile accident.

[182]Defendant Adkins borrowed an automobile from defendants Eymann and Eymann Motor Company, a copartnership, in Fresno; drove to Monterey, where he was joined by plaintiff, a woman twenty-three years of age, on a trip to Los Angeles, to witness a football game. Plaintiff at all times drove the automobile. When they had reached a point south of Santa Maria, an accident occurred which resulted in severe injuries to plaintiff. She recovered judgment against Adkins based upon findings that the accident was caused by his negligence and wilful misconduct, and against defendants Eymann and Eymann Motor Company (hereinafter referred to as defendant Eymann) as the owner of the car. Both defendants appeal.

The findings of'negligence and wilful misconduct on the part of Adkins are based upon the following facts: On the way down from Monterey, Adkins imbibed freely from a large bottle of whiskey which he had brought with him, resulting in his intoxication, of which plaintiff became aware a short distance north of Santa Maria. When they were about iy2 miles south of Santa Maria, traveling down grade and approaching a turn in the highway to the right, at a speed of approximately forty miles per hour, Adkins made advances to plaintiff; he took hold of plaintiff's hand and plaintiff jerked it away from him and told him not to do that, whereupon, in the language of the findings: “Said defendant, Virgil Homer Adkins, did immediately thereafter grabahold of plaintiff’s right leg with his right hand and put his left arm around plaintiff’s left shoulder and did then and there pull plaintiff toward him with great force in an attempt to hug and kiss plaintiff.” Plaintiff’s foot was pulled away from the brake pedal and she lost control of the steering wheel. The car went off the road through a guard rail and plaintiff’s injuries resulted. The accident occurred at 8 or 8:30 P. M.; the night was clear and the road was dry. A sign at the roadside gave warning of the curve ahead. Plaintiff called Adkins’ attention to the curve as she passed the sign, which was a considerable distance from the curve. She took her foot off the accelerator, applied the brake, and slowed down. She was applying the brake at the time Adkins interfered with her operation of the car in the manner stated. Plaintiff had had one drink with Adkins in Monterey, after which she drank no more. Adkins was [183]