Shipp v. Lough

MOORE, P. J. Plaintiffs appeal from the judgment of the court based upon a directed verdict. The action is founded upon the claim of plaintiffs that Maurice Shipp, a minor, while a guest in the automobile of defendant, suffered certain injuries by reason of the wilful misconduct of defendant.

It appears that on the 26th of March, 1939, defendant, accompanied by plaintiff Maurice Shipp, left Long Beach for the purpose of driving to Palm Springs, where Maurice was to enter a beauty contest. It was raining at Long Beach and it rained upon the car at various points along the road until they reached a point near Banning, where they collided with a west bound Buick coupe driven by one Backus.

The charge of wilful misconduct is predicated upon the claims that defendant drove at an excessive speed; that Maurice protested the excessive speed; that the pavement was slippery; that defendant’s windshield wiper was defective; that he attempted to pass another car in the face of oncoming traffic and that he was driving on the wrong side of the highway.

The evidence is that while rain had fallen upon the highway, it was a rough concrete pavement up to a point five hundred yards from the point at which the accident occurred. While for a distance the concrete had been covered with a layer of asphalt and was slippery, there is no evidence that defendant had any knowledge of the change in the nature of the surface. In fact, he was not familiar with the highway; his last drive upon it at the point of the accident was in 1936.

Defendant was not speeding on a curve. The evidence shows that, from five hundred feet from the point of accident ■ eastward, the curve is gradual and does not prevent a view of the highway ahead. The driver of the Buick testified that “it was a straight-a-way at the culvert”, the place at which the accident occurred. There is no evidence that any defect in the windshield wiper prevented its keeping a clear vision for the defendant driver.

[822]At the time of the collision defendant was not passing another automobile. He was attempting to pass another car when he discovered the approach of the Buick. When he applied his brakes in order to return to his former position in the line of traffic, he skidded head on into the Buick. His was a clear attempt to withdraw from the danger of an approaching car, while the collision resulted from the slippery surface of the highway of which he had no former knowledge. At the time that he pulled into the left side of the highway in order to pass another car, he was travelling at a speed not to exceed forty-five miles per hour. He had driven from Long Beach at speeds ranging from fifty to sixty-five miles per hour, his tires were new and his brakes effective. At the time that he pulled out to pass the car ahead of him, the highway was clear for at least two hundred feet ahead.