Anderson v. Newkirch

• Decision Date: 18 December 1950
• Citation: 225 P.2d 247,101 Cal.App.2d 171
• Court: California Court of Appeals Court of Appeals
• Parties: ANDERSON v. NEWKIRCH. Civ. 14320.

Page 247

225 P.2d 247

101 Cal.App.2d 171

ANDERSON v. NEWKIRCH.

Civ. 14320.

District Court of Appeal, First District, Division 1, California.

Dec. 18, 1950.

Joseph T. O'Connor, Harold H. Cohn, San Francisco, for appellant.

Michael L. Haun, Philander Brooks Beadle, San Francisco (Patrick Joseph O'Reilley, San Francisco, of counsel), for respondent.

FRED B. WOOD, Justice.

Defendant appeals from the judgment entered upon a verdict rendered against him in an action for damages for personal injuries sustained by plaintiff while riding as a nonpaying guest in an automobile driven by defendant.

Appellant assigns as error: (1) The evidence is insufficient to support the implied finding of wilful misconduct, (2) the admission of evidence of the so-called 'speed limit' on the San Francisco-Oakland Bay Bridge, where the accident occurred, and (3) the overruling of objections to various questions asked of defendant upon cross-examination.

On the question of the sufficiency of the evidence in a case such as this, the inquiry starts with a consideration of the respective rights and duties of the parties, the guest and the driver. The applicable statute declares that, 'No person who as a guest accepts a ride in any vehicle upon a highway without giving compensation for such ride * * * has any right of action for civil damages against the driver of such vehicle * * * on account of personal injury to * * * such guest during such ride, unless the plaintiff in any such action establishes that such injury * * * proximately resulted from the * * * wilful misconduct of said driver.' Vehicle Code, § 403; emphasis added.

We observe in this statute two elements: Proximate cause, as in a negligence action; 'wilful misconduct,' a standard of care peculiar to this type of action. 'Misconduct' denotes doing that which should not be done or failing to do that which should be done. 'Wilful' denotes intentional action or inaction, either with knowledge, express or implied, of probable consequences or with wanton and reckless disregard of possible consequences.

It follows that this statute imposes upon the driver of an automobile, toward such a guest, the duty of not intentionally doing that which should not be done or intentionally failing to do that which should be done, with knowledge, express or implied, that injury to his guest will probably result or with wanton and reckless disregard of the possibility that injury to his guest may result. See Cope v. Davison, 30 Cal.2d 193, 198, 180 P.2d 873, 171 A.L.R. 667.

The question, then, is: Does the evidence support the implied finding of the jury that appellant violated this duty, as driver, toward respondent, his guest, and that her injury proximately resulted therefrom?

The accident occurred shortly after midnight on December 21, 1946. Appellant was operating his automobile on the San Francisco-Oakland Bay Bridge and respondent was riding with him as a guest. They were returning from a trip to Modesto, having left San Francisco at approximately nine o'clock of the morning of December 20. Appellant did all of the driving. After leaving Modesto they stopped at Niles for dinner, then drove to appellant's home in Oakland, where they addressed Christmas cards until 11:45 in the evening, went to the Oakland post office, mailed the cards shortly before midnight, and then commenced the trip across the bridge. Respondent testified that she estimated appellant's speed on the bridge, just prior to the accident, at from 60 to 65 miles per hour; he testified his speed was between 40 and 45 miles per hour. The accident occurred when appellant's car collided with the rear end of an automobile which was stopped on the bridge, in the outside lane next to the curb. He testified that he first saw the stopped car when about 200 feet away, but could not tell what it was; as he approached he saw it was a car, could not see tail lights on it and could not tell whether it was moving or not; and when about 50 feet away he realized the car was stalled, applied the brakes and started moving to his left; that his car after the impact went forward not more than six or seven feet and pushed the other car forward between 10 and 15 feet. The driver of the stopped car testified that it was stopped from two to five minutes before the collision, he having parked it next to the curb because of a flat tire; that the tail light on the left rear fender was burning, as was the light over the license plate in the center of the rear; that he was about 120 to 200 feet to the rear of his car when he saw appellant's car go by, having gone to the rear to signal oncoming cars; that he could not estimate appellant's speed other than as 'fairly fast'; that the collision was from eight-tenths to nine-tenths head-on; that he heard the squeak of the brakes of appellant's car and observed that appellant started to turn out when appellant's car was about 15 feet from the parked car; that his was a 1939 Ford in good condition, just having been overhauled; that he had applied the hand brakes of his car and it was in low gear at the time of the accident; that his car was pushed forward about 15 feet by the force of the impact and was a total loss; and that traffic on the bridge at the time was moderate or medium.

Appellant testified that at the time of the collision he was traveling about 25 miles an hour; that there was considerable traffic coming from San Francisco and that there was quite a glare from the headlights of those cars.

Respondent testified that while traveling to Modesto appellant at times drove over 60 miles an hour; that he would approach cars closely and not attempt to stop until close behind them; this made her nervous and once during the course of the drive she called to his attention the way in which he would approach cars and not attempt to stop until he was very close to them; that she constantly was putting her feet on the floor as though she were putting on the brakes, and after she had done this a number of times he asked her if she was nervous, to which she replied, 'I don't see why you don't start to stop before you approach the cars so closely,' to which he responded, 'Well, if one knows his car that's all right'; that on the way from Modesto to Niles he drove 60 to 65 and at one time 70 miles per hour, and that on the way from Niles to Oakland he once traveled 75 miles an hour; that at the time of the collision she was sitting sidewise, to avoid looking at the road because his manner of driving made her nervous.

Appellant testified without objection, on cross-examination, by respondent under section 2055 of the Code of Civil Procedure, that at the time of the accident he knew the speed limit on the bridge, knew it was dangerous to drive anywhere in excess of the speed limit, was familiar with traffic conditions on the bridge, the lanes on the bridge are quite narrow, people cut from one lane to another, it was dangerous to exceed the speed limit under the conditions and at the time of the accident, that if he exceeded the speed limit there would be a probability of a collision with another automobile. In response to the question, 'Well, now, Mr. Newkirch, you did know at that time and place that if there was a collision while your automobile was traveling in excess of the speed limit fixed by law, you knew that there was a likelihood of serious injury to your passenger, did you not?' he testified, without objection, 'I certainly know that if I drove at an excessive rate of speed there would be more danger of an accident than any other way'; followed by the question, 'Of course, then, the answer to my question I just asked you is 'yes,' is it not?' and answer, 'Yes, if it has any bearing on the case, yes, I knew that.'

The jury also had before it the testimony, later given on cross-examination, under section 2055, which appellant claims was erroneously...