Aronson v. McDonald, 15381.

• Decision Date: 15 October 1957
• Docket Number: No. 15381.,15381.
• Citation: 248 F.2d 507,17 Alaska 395
• Parties: Earl G. ARONSON, Administrator of the Estate of Flora Ritta Mae Aronson, Deceased, etc., Appellant, v. George A. McDONALD, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

17 Alaska 395, 248 F.2d 507 (1957)

Earl G. ARONSON, Administrator of the Estate of Flora Ritta Mae Aronson, Deceased, etc., Appellant, v. George A. McDONALD, Appellee.

No. 15381.

United States Court of Appeals Ninth Circuit.

October 15, 1957.

Maurice T. Johnson, Fairbanks, Alaska, for appellants.

Collins & Clasby, Charles J. Clasby, Fairbanks, Alaska, for appellee.

Before LEMMON, FEE and BARNES, Circuit Judges.

LEMMON, Circuit Judge.

This is an appeal from a judgment in favor of appellee, defendant below, in an action brought under the Alaska wrongful death statute¹ by appellant Earl G. Aronson, as administrator of the Estate of Flora Ritta Mae Aronson, deceased, for the benefit of the surviving husband, Earl G. Aronson, and children of the decedent: Earlene A. Roberts, Betty C. Howard, and Earl G. Aronson, Jr. The case was tried to the judge who found appellant's intestate guilty of contributory negligence and held that she had assumed the risk of the defective automobile in which she was riding at the time of the fatal accident. From the judgment entered in favor of defendant, this appeal is prosecuted. Several points are urged for reversal. The only one which deserves serious consideration is the attack upon that part of the judgment which awards a personal judgment against Earl G. Aronson, as an individual and not in his capacity as administrator.

An extended statement of the facts is not needed. Suffice it to recount that appellant's intestate was riding as a passenger, with other persons, in an automobile owned by appellee, and driven by his wife, Naomi McDonald, on Richardson Highway in Alaska between Copper Center and Valdez; that the hydraulic brake line was broken during the trip and all the fluid was lost, leaving the automobile without adequate foot brakes. All of the parties in the automobile were acquainted with the faulty condition of the brakes and were aware of the fact that fog rendered visibility very low. The danger of proceeding was discussed by the parties in the automobile, two of the passengers expressing the desire that the brakes be repaired before proceeding. With knowledge of the condition they all finally elected to continue on the journey to Valdez. In order to do so it was necessary to cross Thompson Pass and descend a long grade. Traversing the grade without brakes, the car gained momentum which could not be stopped by the driver. The car left the highway, turning over several times, killing two of the passengers, including appellant's intestate, and injuring two of the others.

The court found Mrs. McDonald to have been negligent in operating the vehicle without adequate brakes and that her negligence was one of the proximate causes of the accident. The contributory negligence of appellant's intestate was found in her continuing to ride in the vehicle without remonstrance or objection and with knowledge of the defective brakes; she assumed the risk of proceeding in the face of the danger and peril inherent in the operation of the vehicle under the conditions existing and the negligence on her part was one of the proximate causes of her fatal injuries.

Although appellant asserts otherwise, these findings find ample support in the record. After discovering the brake failure and before descending the grade, one of the passengers asked that they stop and hold a prayer meeting. This was done. Following the prayer meeting, and, apparently all being satisfied that their prayers would be answered and see them safely through the dangerous descent, they proceeded without objection from anyone. As the car gathered speed, the driver sought to slacken the speed by using the hand brake. That brake soon began to smell and the car gained momentum, the hand brake having become completely ineffective through the burning of the brake lining. The driver attempted to bring the car into a lower gear. The automobile was equipped with a semi-automatic transmission. In so attempting she put the transmission into neutral.

Complaint is made that the court refused, at the time of trial, appellant's motion to increase the ad damnum clause in his complaint. The above findings render this ruling...