Katz v. Kuppin

MOORE, P. J. Plaintiffs appeal from a judgment of non-suit in an action for damages for personal injuries sustained while riding as guests with defendant in her automobile.

About 2 o’clock A. M., on February 3, 1939, defendant drove her Terraplane coupe, accompanied by her two guests, the plaintiffs Rose Katz and Mrs. Sophronia Ray, upon a wide, paved boulevard some five miles east of Brawley. The weather was clear and dry and the moon was brightly shining. Oh their way to Los Angeles the parties had taken the wrong road at Brawley. While driving along this boulevard, at a speed in excess of 70 miles an hour, at a curve, the coupe ran off the road -into a ditch and the guests were injured. Because of such speed, of the protests thereat voiced by plaintiffs and of the curve in the road, plaintiffs claim that the accident was the result of defendant’s wilful misconduct.

We are to determine (1) whether the evidence introduced by plaintiffs and all just inferences show that the injuries suffered proximal el y resulted from wilful misconduct, and (2) whether the court erred in making its order of non-suit at the close of plaintiffs’ ease.

Plaintiffs testified that, after leaving Brawley, Miss Katz requested defendant on several occasions to diminish her speed; that she complied but then gradually accelerated her speed and became angry at the admonitions. Mrs. Ray testified that on three occasions she had cautioned defendant against driving so rapidly.

Defendant was driving in the early hours of the morning on a dry pavement, on the right hand side of the highway free of traffic, and the moon was shining so that it was almost as bright as day. No maps were introduced in evidence and no description of the curve was given by any witness except that of Miss Katz who described it as a right hand curve. Sophronia Ray testified: “I could see the curve way ahead”. [408]When asked if she had said anything to Miss Kuppin about a curve being there, she answered: “No, because I was talking to her about driving so fast and asked her to slow up.” From the context of the testimony of Miss Katz, nothing would indicate that she meant anything other than that the curve was a turn to the right and not a right angle turn.

The evidence affords no basis for comparing the speed of defendant with that of a motorist approaching a known danger. The evidence does not establish a case of wilful misconduct as defined in Turner v. Standard Oil Co., 134 Cal. App. 622 [25 Pac. (2d) 988], where it is held that two essentials must exist: (1) An intentional act or an intended failure to act, (2) under circumstances showing knowledge, express or implied, that injury to a guest will be a probable result. Driving at a speed in excess of 70 miles per hour, along an open country highway at 2 o’clock in the morning, in clear weather, under a bright, moonlit sky, is not of itself sufficient to impute to the driver the knowledge that an accident will probably happen. Neither can knowledge of probable injury be implied from the fact of the curve in the road. There is no evidence that defendant was driving in an erratic manner or that she knew that she was approaching a dangerous curve. Nothing was offered as to the nature or degrée of that curve. No testimony appears in the record to show that defendant saw, lmew of, or had her attention directed to the curve or that she knew that any specific peril lay ahead.