DaVall v. Cary

BARNARD, P. J. The appellant was injured on February 18, 1950, while riding in an automobile owned and driven by the respondent. She alleged in her complaint that she was a passenger in this car, having been requested by the respondent to assist her in closing a sale of real estate. She also alleged that her injury was proximately caused by the concurrent negligence of the respondent and another defendant, Robert Logue. Respondent’s answer denied these allegations, and alleged that appellant was riding as a guest in this car. A jury returned a verdict in favor of both defendants, a motion for a new trial was denied, and this appeal was taken from that part of the judgment which is in favor of this respondent. The appellant contends that the evidence is not sufficient to support the judgment; that respondent’s negligence conclusively appears; and that it conclusively appears that the appellant was a passenger and not a guest.

These parties were elderly ladies and had been friends for many years. The appellant operated a real estate office and the respondent had a license as a salesman in connection therewith, but was not active and had never made a sale. On this occasion they left Riverside at about 8 a.m. on their way to Huntington Beach, where the respondent was going to sign some escrow papers in the sale of a parcel of real estate which she owned. The accident happened about 8:30 a.m. as they were proceeding westerly through the Santa Ana Canyon. It was foggy, and all cars on the road were proceeding slowly and with lights on. At the point of the accident the road was 21 feet wide with a white line along the middle, there was a 6-foot shoulder at the north, a 9-foot “paved” shoulder at the south, and beyond that an 18-foot dirt shoulder. The respondent came up behind a truck and trailer and turned to her left to pass it, straddling the white line. As she did this, she saw the lights of about seven cars approaching from the opposite direction. Some of these cars passed to her left but one, operated by the defendant Logue, suddenly pulled out of the line of approaching traffic and came toward her, striking her car near the left rear fender. Her car zigzagged, hit the front of the truck ahead of her, went through a guardrail and down an embankment. A little later, other transportation was secured and both ladies went on to Huntington Beach where the respondent signed her escrow papers at a bank before it closed about noon.

The evidence is conflicting with respect to negligence on the part of the respondent. While an officer, who arrived [380]