Faulk v. Soberanes

• Decision Date: 07 August 1961
• Citation: 56 Cal.2d 466,14 Cal.Rptr. 545,363 P.2d 593
• Court: California Supreme Court
• Parties: , 363 P.2d 593 Anna C. FAULK, Plaintiff and Appellant, v. Wiletta SOBERANES, Defendant and Respondent. S. F. 20748

Page 545

14 Cal.Rptr. 545

56 Cal.2d 466, 363 P.2d 593

Anna C. FAULK, Plaintiff and Appellant, v. Wiletta SOBERANES, Defendant and Respondent.

S. F. 20748.

Supreme Court of California

August 7, 1961.

Robert Allan Hansen, San Francisco, for plaintiff and appellant.

Bledsoe, Smith, Cathcart, Johnson & Phelps, San Francisco, and Robert A. Seligson, Oakland, for defendant and respondent.

GIBSON, Chief Justice.

Plaintiff brought this action for injuries sustained while riding in an automobile driven by her sister, who is the defendant in this action. Pursuant to a jury verdict judgment was entered for defendant, and on this appeal plaintiff contends that the court erred in instructing the jury.

Plaintiff's testimony may be summarized as follows: On the morning of the date of the accident plaintiff telephoned defendant in Marin County, where both she and her sister were living, and proposed an automobile trip to arrange for the plaintiff and trees on property owned by plaintiff and located near Reno, Nevada, and also to visit her son, who lived in Reno. Defendant had recently purchased a new automobile, and plaintiff proposed that defendant transport her to Reno and that they spend the night with her son or at a motel. She offered and agreed to pay the expenses of the trip, and defendant acquiesced in the proposal. During the course of the trip plaintiff on two occasions paid for gasoline. They arrived at the Nevada boundary at approximately 2 p. m. and stopped for lunch. Plaintiff purchased two drinks for defendant and paid for her lunch, and they gambled at a local establishment. About 8 p. m. plaintiff suggested going to a motel or continuing on to Reno, but defendant refused and insisted upon returning home, and they started back to Marin County. All driving was done by defendant, and plaintiff estimated defendant's speed at between 55 and 60 miles per hour. Plaintiff remembered nothing about the accident or any oncoming traffic just preceding it.

Defendant, called as a witness under section 2055 of the Code of Civil Procedure, gave much the same testimony as plaintiff concerning what occurred prior to the return trip. She also testified that after gambling she was tired and wanted to return home, that there was little traffic on the road and that the accident occurred at a point where the road curved to the left. She was proceeding at a speed of about 50 to 55 miles per hour, and as she approached the curve two cars headed towards her, with the second attempting to pass the first. The second car appeared to be in her lane, and its headlights gave her 'trouble.' She became frightened, pulled to the right to avoid the car, and ran into a tree on the side of the road.

An officer of the California Highway Patrol who investigated the accident testified that the road, which was mountainous and winding, contained two lanes, each 11 feet wide, with trees near the edge of the roadway, that skid marks of defendant's automobile extended 105 feet in a straight line, that the tree hit by defendant was five and a half feet from the road and in a straight line with the road as it approached the curve, and that he did not see anything to indicate the presence of other cars at the time of the accident. Defendant told him, after hd arrived at the scene of the accident, that as she was starting to go around the curve two cars approached her and that she was blinded by the headlights of the first car and applied her brakes, but she did not say anything which would indicate that one of the cars had come into her lane and forced her off the road. The fact that the brakes had been applied and that the skid marks were straight, according to the officer, indicated that defendant had been blinded by the headlinghts, and there was no indication of swerving.

An insurance adjuster testified that five days after the accident he interviewed plaintiff at a hospital in the presence of her sister, who was occupying the same room; that plaintiff, although in pain, was able to respond intelligently and in detail to his questions; that on the basis of her answers he prepared a statement in his handwriting, and that after he read the statement to her she signed it. The statement is substantially in accord with defendant's testimony as to the accident. In addition, the statement recites that plaintiff did not pay anything for the ride and that the trip was a 'pleasure drive' to Lake Tahoe. In rebuttal plaintiff testified that she was without glasses and unable to read at the time the statement was assertedly given, and she denied that she had made or signed any such statement or that she had ever seen the adjuster prior to the trial. Defendant testified that she and plaintiff had separate rooms in the hospital and that she had a broken knee which...