Anderson v. Hawkins

• Court: California Court of Appeals
• Citation: 100 Cal.App.2d 490,223 P.2d 857
• Parties: ANDERSON v. HAWKINS. Civ. 17611.
• Decision Date: 16 November 1950

Page 857

223 P.2d 857

100 Cal.App.2d 490

ANDERSON v. HAWKINS.

Civ. 17611.

District Court of Appeal, Second District, Division 3, California.

Nov. 16, 1950.

Samuel P. Young, Los Angeles, John K. Otis, El. Monte, for appellant.

Parker, Stanbury, Reese & McGee and White McGee, Jr., all of Los Angeles, for respondent.

VALLEE, Justice.

Appeal by plaintiff from a judgment entered on a jury verdict in favor of defendant in an action for damages for personal injuries sustained as a guest-passenger in defendant's truck, as the result of a collision between his truck and that of another. We state the evidence in the light most favorable to the prevailing party.

The accident occurred in the middle of a 400-foot-long bridge on June 25, 1948, about 11:00 o'clock p. m. Defendant, with plaintiff as his guest-passenger, was driving his truck east of on Whittier Boulevard in the county of Los Angeles.

Plaintiff was 29 years of age, was well educated, having had two years of college, and had done considerable traveling. Although a cripple from birth--a victim of a congenital spastic condition--he could walk 'about 15 to 20 feet' without holding on to something. A good deal of the time he used a cane. He traveled about in a specially built tricycle. He had met defendant several months prior to the accident and saw him on the average of three nights a week at a neighborhood night spot, called 'Club 99.' Plaintiff and defendant belonged to the 'South Paw Club,' the members of which 'were fined if they were caught drinking with any hand but the left hand.' On the night in question plaintiff had been invited by the proprietors of 'Club 99' to a barbecue and used his tricycle to get there. Defendant was also there. Plaintiff saw defendant mix his drinks five or six times. First he would have a highball and then a glass of wine. Defendant asked plaintiff to go with him and have a chicken dinner. About 11:00 o'clock defendant took plaintiff by the shoulders and said, 'Come on, we will go together.' He picked plaintiff up and carried him to his truck. When defendant reached the truck, he put plaintiff on his feet and opened the door. Plaintiff got into the truck by himself.

Almost immediately after leaving 'Club 99,' defendant began to weave his truck from side to side and over the white line. He traveled between 70 and 75 miles an hour. Plaintiff remonstrated 10 or 12 times about the speed, but defendant paid no heed. Plaintiff testified that at this point he 'began to think' defendant was intoxicated. On two occasions plaintiff reached over with his left foot and kicked off the ignition key. Each time the car came to a stop and defendant stepped out for about two minutes. Defendant thought he was out of gas and suggested they flag someone. After the second stop, defendant asked plaintiff to watch for a gas station. Plaintiff called defendant's attention to one and defendant drove his truck into it. While there, the attendant put gasoline into the tank, checked the oil, and discussed the amount of the sale with defendant. Plaintiff made no effort to get out of the truck or ask the attendant for help or assistance. He fell asleep almost as soon as the truck left the station. The accident occurred very shortly thereafter.

Neither plaintiff nor defendant was able to tell what occurred immediately preceding the accident. Plaintiff was asleep at the time, and defendant testified the last thing he remembered was listening to the radio at home and the next thing was waking up in the County Hospital about five days later. Two witnesses to the accident, however, supplied details as to what transpired during the last few hundred feet before the collision. The witnesses, both motorists proceeding easterly on Whittier Boulevard, testified that defendant was traveling easterly on Whittier between 60 and 70 miles an hour, crossed the double white line in the center of the highway and hit a hay truck, properly lighted, which was traveling westerly on Whittier. The distance between 'Club 99' and the scene of the accident was approximately 4 1/2 miles.

The only duty a driver of a car owes his guest is to refrain from wilful misconduct or intoxication. Vehicle Code, sec. 403. The complaint alleged defendant was intoxicated at the time of the accident and 'negligently, wilfully, and intentionally' drove his truck at an 'excessive' rate of speed. The defendant denied the allegations generally and pleaded contributory negligence and assumption of risk. From the foregoing evidence, which was not controverted, defendant was intoxicated or guilty of wilful misconduct. The fact that defendant may have been intoxicated or guilty of wilful misconduct, however, was not determinative of his liability. There was still in issue the question of plaintiff's contributory negligence or assumption of risk. The jury resolved this issue in favor of defendant.

No contention is made that the evidence does not support the verdict. The refusal of the trial judge to give certain instructions proffered by plaintiff is the only error assigned.

Plaintiff requested an instruction to the effect that in determining whether he should have left defendant's truck at any time before the accident, the jury was to be 'governed by the following rule: What would and what could a reasonable person have done in plaintiff's position and in plaintiff's physically handicapped condition, seeing what he saw, knowing what he knew, in the light of the locality, time of night and surrounding circumstances of his situation, and affected by his physical ability at that time and the human propensities or elements which ordinarily enter into the formation of and influence the judgment?', and one reading, 'You are instructed that before a failure to leave a vehicle will support an inference of assent to a driver's misconduct, it must appear that the guest had a reasonable opportunity and physical ability to alight and that a person of ordinary prudence and of physical disability similar to that of plaintiff herein and in plaintiff's position, would have alighted from the vehicle and refused to resume passage in it.' (Emphasis by appellant.) The instructions were rejected. Plaintiff argues that no similar instructions were given and that under the facts they should have been given because there was testimony that plaintiff did not leave defendant's car at any time due to his physical handicap and because of the fear and emotional strain he was under by reason of defendant's conduct. The proffered instructions were covered by other instructions given at the request of plaintiff. ¹ There was no necessity of including the minute details set forth in the refused instructions.

Plaintiff requested two instructions on imminent peril. Under the facts, they were properly refused. The cases cited by plaintiff in support of his contention are factually distinguishable. Plaintiff became fully aware of defendant's intoxication and conduct, and of his own danger almost immediately after leaving 'Club 99.' A reasonable opportunity to alight was afforded him at the gas station, notwithstanding his physical handicap. It was a reasonably safe place and he had ample time to alight. There was also a certain amount of protection which the presence of the attendant afforded him, if, as he suggested, defendant might have become belligerent. His decision to stay in the car was not made as a result of a sudden emergency or peril. After having the opportunity to alight, he went to sleep. Whether he was negligent in not leaving the truck at the gas station or calling for assistance was a question for the jury. Lindemann v. San Joaquin Cotton Oil Co., 5 Cal.2d 480, 507, 55 P.2d 870. In the absence of evidence disclosing a...