Hall v. Berliner

JENNINGS, J. On July 20, 1931, Maeme Louise Hall was killed when the Packard coupe in which she was riding as a guest turned over. The plaintiffs in this action are the surviving husband and the minor child of the deceased. The defendants are Edna Williams, the owner of the automobile, who was riding in it at the time the accident occurred and J. J. Berliner, who was then driving the ear with the owner’s consent. The cause was tried before the court without a jury and at the conclusion of the trial the court found that the defendant Berliner was driving the automobile in a negligent manner at the time of the accident but that he was not guilty of gross negligence in the operation of the car. Judgment was accordingly rendered in favor of the defendants. This appeal has been taken by plaintiffs from the judgment so rendered.

Prior to the occurrence of the accident Berliner was driving south on the Bakersfield-Los Angeles highway at a speed of approximately 45 miles per hour. When he had arrived at a point approximately 25 miles south of the city of Bakersfield he observed a box truck which was headed south. At this time Berliner was approximately one mile north of the truck. He continued to proceed at a speed of about 45 miles per hour until he arrived at a point approximately 75 feet from the rear end of the truck when he retarded the speed at which he was driving the Packard to 35 miles per hour, turned to his left and sounded the horn with the intention of passing the truck on its left side. He then observed that an automobile was approaching from the south and it was his opinion that this last-mentioned vehicle was distant from him approximately one and a half miles. Just at this time the box truck turned sharply to its left and proceeded ahead of him on the east side of the highway. Berliner continued to sound the horn of the Packard at intervals. When he arrived at a point about 25 to 35 feet north of the rear [195]end of the truck he turned the Packard sharply to the right and ran off the highway where the automobile came in contact with an embankment of stones and turned on its side. At this point the paved portion of the highway was 20 feet wide and the dirt shoulders on both sides of the pavement had been plowed and filled with sand. On the west side there was a drop of 8 or 10 inches from the edge of the pavement to the plowed shoulder of the highway. The Packard proceeded along the shoulder for a distance of 40 feet to the point where it turned on its side.

The sole point urged by appellants on this appeal is that the above-narrated facts indicate that respondent Berliner was guilty of gross negligence as a matter of law. This contention may not, in our opinion, be sustained.