Bolter v. Clark

SHINN, P. J. Tresa A. Bolter brought suit against Alson Clark to recover damages for injuries sustained while riding in defendant’s automobile. She alleged in one cause of action [576]that she was a passenger and was injured through defendant’s negligence; in a second cause of action that she was a passenger and suffered property damage consisting of expenses incurred and wages lost by reason of her injuries; a third cause of action alleged that she was a guest and was injured as a result of defendant’s negligence due to his intoxication and due also to his wilful misconduct. At the close of plaintiff’s evidence the court granted defendant’s motion for non-suit. Plaintiff appeals.

There was evidence of the following facts: Defendant came to plaintiff’s apartment about 6:30 p.m., bringing a can of peanuts and a pint bottle of whiskey; his breath exuded alcoholic fumes which plaintiff noticed; defendant had two drinks from the bottle, about half its contents. Plaintiff had none. The parties had known each other about six years. On the evening of the accident they left the apartment together and rode to a drive-in restaurant where they had dinner at about 8 p. m. They then went for a drive. They stopped at a market where defendant made some purchases. Called as a witness under section 2055 of the Code of Civil Procedure, defendant gave his account of the accident. He was traveling east on Adams Street approaching Raymond at about 9:30 p.m.; an old car was traveling on his left. Defendant was in the outside lane. When he was some 200 feet from Raymond, he realized there was a crosswalk at the intersection. The other car was some 60 feet ahead and obstructed his view of part of the crosswalk. Defendant was going about 25 miles per hour. He had slowed down. The other car also slowed down; defendant put on his brakes gently; he did not then see a pedestrian in the crosswalk. The other car stopped suddenly. Defendant applied his brakes more forcefully. There was a pedestrian in the crosswalk. Defendant was from 25 to 40 feet away, going about 10 miles per hour. When he first saw the pedestrian the latter was moving toward the south side of the street. Defendant did not sound his horn. He uttered no warning; he did not attempt to brace plaintiff; she was thrown from her seat; defendant assisted her to her seat and drove her home and carried her inside. Defendant admitted having telephone conversations with plaintiff; that he said he did not want the matter to go to court; he may have remarked “I had some liquor that night.” Mrs. Bolter testified that defendant brought a pint of whiskey to the apartment and drank about half of it in about 20 minutes.