Hallman v. Richards

• Decision Date: 17 February 1954
• Docket Number: No. 15671,15671
• Citation: 266 P.2d 812,123 Cal.App.2d 274
• Court: California Court of Appeals Court of Appeals
• Parties: HALLMAN v. RICHARDS.

Page 812

266 P.2d 812

123 Cal.App.2d 274

HALLMAN v. RICHARDS.

No. 15671.

District Court of Appeal, First District, Division 2, California.

Feb. 17, 1954.

Hearing Denied April 14, 1954.

Allan, Miller & Groezinger, San Francisco, for appellant.

Hadsell, Murman & Bishop, San Francisco, for respondent.

KAUFMAN, Justice.

This is an appeal from a judgment of nonsuit in favor of defendant, respondent herein, following defendant's motion at the completion of plaintiff's evidence in a personal injury action by a guest based on a claim of wilful misconduct on the part of the driver.

On the night of August 4, 1951, respondent, Jack Richards, invited plaintiff Hallman to ride with him as a guest in his 1951 Ford coupe. Hallman had finished his duties as desk clerk at a San Francisco hotel at about 12 p. m. that night. He and respondent then drove across the Golden Gate Bridge to Sausalito to play shuffle board at a bar and recreation center known as The Plaza, where they had been a couple times before. They played shuffle board and appellant drank three beers while Richards, according to appellant, had three or four bourbons. Respondent appeared sober to appellant when they left for San Francisco at about 2 a. m.

Appellant testified that Richards was driving at between 55 and 60 miles per hour after they made the stop at the toll gate and before they reached the point on the bridge approach where the accident occurred. The surface of the road was damp. At the point where the highway divides to continue by way of Doyle Avenue northeasterly to Marina Boulevard and by way of Richardson Avenue southeasterly into the City, respondent's automobile struck with great force the concrete pier located at the center point where the highway divides, causing severe personal injuries to appellant.

The only issue on this appeal is whether appellant offered sufficient evidence of wilful misconduct on the part of the respondent to take the case to the jury.

Appellant had testified that as they left the toll plaza and proceeded toward the City, respondent was driving at between 55 and 60 miles per hour. As they approached the abutment dividing the highway, he increased the speed, and must have been going over 60 miles per hour. He was driving in the center lane of the three lanes proceeding eastward. There was one car on the right and one on the left as they left the toll plaza. Richards was in the middle lane of the three east-bound lanes. As to the position of the car on the right, appellant stated on cross-examination, that they were 'running pretty much neck and neck.' The car to the right was traveling at a speed which he estimated at between 55 to 60 miles per hour before Richards speeded up. He recalled the car at the left traveling at about the same speed, but did not recall its position just before the accident occurred. Appellant's deposition taken on January 11, 1952, was read from on cross-examination. He had there stated that respondent was in the center position between the two cars and had speeded up trying to get ahead of them, that he would slow up and then speed up to get ahead.

The witness Carver, the driver of the car to respondent's right, had driven onto the bridge approach from the Fourteenth Avenue entrance. He testified that he was driving at about 50 miles per hour, that respondent passed him up, that then he did better than 50, about 55 'because he passed me and I passed him up.' Then respondent drew up even with Carver again, and they were then about 25 feet from the abutment. After he passed the abutment he heard a crash and realized there had been an accident. He stopped his car and backed up to the abutment. He saw that the passenger in respondent's car was badly injured, and told a passing motorist to notify the Highway Patrol. The front end of the Ford was badly damaged, the right side shattered where it had hit the abutment, the frame was bent up, and hot water was spouting up from the engine.

Officer Morgan of the State Highway Patrol, an officer of 16 years experience, testified that when he arrived at the scene he noted that the engine of the Ford was demolished and caved in, the windshield on the right side was cracked, and the doors of the car could not be closed. Respondent's passenger was cut up and bleeding badly, and was squeezed down to the level of the dashboard and crumpled up. He described the abutment as a little over 3 feet 2 inches wide and 3 feet high. A square of concrete had been chipped off by the impact. There is a large light on the abutment which flashes intermittently about 36 times to the minute and has a beam of about 500 feet. The officer stated that the night was misty, the pavement wet in spots, and that windshield wipers were necessary.

The skid tracks caused by the application of respondent's brakes were described by the officer as a solid strip of heavy rubber marks for 19 feet back from the rear of the vehicle. At the end of the heavy mark of 19 feet there were lighter rubber markings in an unbroken line for 160 feet back. The skid marks crossed the lane and proceeded straight to the abutment.

The officer questioned respondent who first replied that he had been run off the road. When the officer told him it was pretty hard to get run off this road and asked him what he had been doing, he said 'I don't know.' Respondent told him not to talk to his partner, that he was asleep and wouldn't know anything. Respondent stated to the officer that he had been driving 35 miles per hour. When the officer said he was going to ask his partner about going to the hospital, respondent said 'please don't do that, he's been drinking and I have been drinking and I don't know what he will tell you.' The officer wanted to know how sober respondent was, so asked him to make a balance test. He couldn't maintain his balance without some assistance. The answers he made were rambling.

Unless it can be said that the evidence herein viewed in the light most favorable to plaintiff establishes that there was no wilful misconduct as a matter of law, it was the duty of the trial court to deny the nonsuit. Hoff v. Los Angeles Pacific Co., 158 Cal. 596, 112 P. 53; Amendt v. Pacific Electric R. Co., 46 Cal.App.2d 248, 115 P.2d 588; Newton v. Cox, 73 Cal. App. 695, 239 P. 54. Appellant contends that there was evidence presented which could give rise to the inference of wilful misconduct and that it was therefore for the jury to decide whether or not such inference should be drawn. Miller v. Cookson, 89 Cal.App. 602, 265 P. 374; Kirk v. Los Angeles Ry. Co., 26 Cal.2d 833, 161 P.2d 673, 164 A.L.R. 1.

It is conceded that plaintiff was a guest, but respondent contends that the evidence shows at most, negligence on his part, and fails to show that element of actual knowledge of the peril to be apprehended from his conduct. The Supreme Court in Porter v. Hofman, 12 Cal.2d 445, 85 P.2d 447, 448, pointed out that wilful misconduct means something different from and more than negligence, however gross. To constitute wilful misconduct 'there must be actual knowledge, or that which in the law is esteemed to be the equivalent of actual knowledge, of the peril to be apprehended from the failure to act, coupled with a conscious failure to act to the end of averting injury. (Citation.) To this must be added the element included in the definition approved in Meek v. Fowler, 3 Cal.2d 420, 425, 45 P.2d 194, and cases following it, of actual knowledge or its equivalent that an injury to a guest will be a probable result.' In the cited case the accident occurred when the woman driving the car turned her head momentarily to look at the children in the back seat when she was driving at a speed of 45 miles an hour. In Meek v. Fowler, supra, it was held not to be wilful misconduct, but a mistake in judgment as to whether or not a driver could cross an intersection before the arrival of another vehicle.

Appellant contends that the cited cases are very different from the present case where respondent drove forward for 179 feet (as shown by the skid marks) straight into a stone abutment, clearly illumined, and with five lanes of highway immediately adjacent into which he could have guided the vehicle had his speed been reasonable--and this on a highway which was familiar to him and where it must be implied that he had knowledge of the peril of the abutment dividing the two approaches to the City.

There need not be a deliberate intention to injure the guest. Hagglund v. Nelson, 23 Cal.App.2d 348, 73 P.2d 265; Van Fleet v. Heyler, 51 Cal.App.2d 719, 125 P.2d 586: Otherwise it would seldom be possible to prove a case of wilful misconduct if it were necessary to have an admission of intent on the part of the driver to injure his guest. Wright v. Sellers, 25 Cal.App.2d 603, 78 P.2d 209. Appellant points to evidence from which a consciousness of misconduct on the part of respondent may be inferred--his statement to the highway patrolman that he was 'run off the road', then his abandonment of that excuse and his statement that he could not make up his mind which way to go.

The driver's knowledge of probability of injury may be either express or implied, there must be either actual knowledge or that which in contemplation of way will be deemed equivalent to actual knowledge. Hastings v. Serleto, 61 Cal.App.2d 672, 143 P.2d 956. Appellant's testimony discloses that on the highway to San Francisco there are three eastbound lanes from the toll plaza to a point approaching the abutment, where the road widens, 3 lanes going to the right to Richardson Avenue and 2 broadening out to the left to Doyle Street. There was testimony that the driver speeded up as he approached the abutment. He was apparently attempting to pass the Carver car which was traveling at least 50 miles per...