Cracolice v. Kramer

BRAY, J. —In an action for damages for personal injury, tried without a jury, judgment was rendered in favor of defendants, from which plaintiff appeals.

Questions Involved

The principal question raised is the alleged insufficiency of the evidence to support the court’s findings (1) that defendants were not negligent, and (2) that plaintiff was guilty of contributory negligence. Also it is claimed that the findings are contradictory and that the court should have found on the doctrine of last clear chance.

Pacts

Taking the evidence, and the inferences reasonably deducible therefrom, most strongly in favor of defendants, the facts follow: Defendant Fred Kramer was the owner of a 1937 Studebaker sedan. He was the uncle of defendant Walter Kramer, who had come to the United States from Europe but a short time before. One Sunday it was decided that the uncle and nephew, together with the uncle’s wife, Mrs. Helen Kramer, would go for a ride. One of the purposes was to show the nephew the scenery; the other was to work in the brake linings. About two weeks before, the car had developed brake trouble, and had been taken to a service station for repair. After a week the car was returned to Fred. The repair man stated that the “car is just like a new car, the lining isn’t fixed, is not broken in, you have to drive the car with speed of a new car, and it might be possible that in using the brake you have to pump it up because I can’t adjust the brakes until the lining is settled.” Walter, who did not have an operator’s license, although he was an experienced driver, drove. They left Fred’s home in Paso Robles and drove to King City. Fred sat beside Walter and directed his driving, as Walter was unfamiliar with the road. Just before reaching King City, Mrs. Kramer remarked that there was something wrong, as she felt heat under the seat and thought the car smoked. Fred looked out of the window and saw smoke coming out of the rear wheel. They drove into the Standard Oil station. Plaintiff, who was employed there, came by and Fred told him, “There is something wrong with [134]my brakes.” Fred got out of the car and saw smoke coming out, and he could smell it. He asked plaintiff if he could “fix that.” Plaintiff told him to drive to the grease rack. Walter drove the ear onto the rack. He was unable to stop the car, and it struck plaintiff, who was standing at the center of the rack between it and the rear wall of the greasing compartment, pinning him to the wall, inflicting serious injuries.