Hill v. Perry
| Decision Date | 23 January 1964 |
| Citation | 224 Cal.App.2d 290,36 Cal.Rptr. 530 |
| Court | California Court of Appeals Court of Appeals |
| Parties | John W. HILL and Evelyn M. Hill, Plaintiffs and Respondents, v. James Richard PERRY, Defendant and Appellant. Rickey CONARD, by his guardian ad litem, Goldie Little, Plaintiff and Respondent, v. James Richard PERRY, Defendant and Appellant. Civ. 272. |
Stutsman, Nagel & Ferrari, and J. J. Nagel, Fresno, for appellant.
Evans, Schroeder & Campbell and George A. Schroeder, Fresno, for respondents Hill.
Dubsick, Helon, Manfredo & Forbes, Hollis G. Best and Elliott D. Chielpegian, Fresno, for respondent Conard.
This is an appeal from judgments entered in favor of the plaintiffs in two cases consolidated for trial. The litigation was based upon an automobile accident which occurred on Elm Avenue (otherwise known as Highway 41) in the County of Fresno. The driver of the pick-up truck in which his two guests were seated was James Richard Perry, 17 years of age; next to him in the vehicle was a young woman, Wanetta Hill, who was killed as the result of the accident; next to her was Rickey Conard, another young friend who was seriously injured.
The theory upon which James Richard Perry was sued was that he was guilty of wilful misconduct. His father, Richard Perry, owner of the vehicle, was joined as a defendant on the claim that he had been guilty of negligence in failing to keep the brakes of the truck in good condition. The jury found in favor of the plaintiffs, John W. Hill and Evelyn M. Hill, father and mother of Wanetta Hill, and Rickey Conard, who sued through a guardian ad litem, but the jury also cleared Richard Perry, father of the driver and owner of the truck. The appeal was filed by the defendant, James Richard Perry.
There is only one question involved--whether the jury was justified in finding from the evidence that the driver of the truck was guilty of wilful misconduct. There is no suggestion that the trial court erred in any respect in rulings on the pleadings or on the admissibility of evidence or in giving or refusing instructions. The only claim made by appellant is that the defendant driver as a matter of law was not guilty of wilful misconduct. A review of the evidence on the subject is therefore essential.
On July 7, 1961, James Richard Perry was operating his father's 1955 Chevrolet half-ton pick-up truck in a northerly direction on Elm Avenue between South and Sumner Avenues. Wanetta Hill was sitting next to him, and Rickey Conard was on the right side of the front seat. Elm Avenue in the vicinity of the point of collision is a paved, two-lane highway 24 feet in width posted for a 55 miles per hour speed. The driver told the investigating officer immediately after the collision that he was traveling at about 60 miles per hour, and that he came over a small rise in the roadway and saw that traffic was moving slowly in front of him. The second vehicle involved in the accident was a 1958 Ford owned and operated by Mrs. Delilah Killibrew, who was also traveling in a northerly direction on Elm Avenue at a speed of about 25 miles per hour; she was following a slow-moving piece of heavy road equipment--a road grader, which had behind it a pick-up truck loaded with lumber. A third automobile directly involved was being driven by one Lopez in a southerly direction in the westerly lane of the highway.
The roadway for a distance of some 945 feet southerly of the point of the accident was divided into two lanes by a double line, which constituted a restriction forbidding passing. The defendant driver was thoroughly familiar with this portion of the highway as he had driven over it at least once or twice a week for a prior period of six months. The roadway where the accident happened contains a number of dips and crests described by counsel in the briefs as 'rolling hills.' The area is such that anyone using it and familiar with conditions controlling traffic would necessarily know that at some points such as that at which the collision occurred vehicles can not be observed ahead at any considerable distance.
As already stated, the defendant told the investigating officer shortly after the collision that he was going at a speed of approximately 60 miles per hour. He admitted on the witness stand that he might have been going more than 59 miles per hour. Mrs. Killibrew testified that his speed was approximately 70 miles an hour.
As the defendant was traveling up the crest just south of the accident, he glanced to his left at a fruit stand located at the side of the highway. He was particularly interested in it because the plaintiff Rickey Conard had worked at that stand during the previous summer. At this point Conard said, 'Watch out!' Appellant applied his brakes; he said that the truck did not seem to slow down sufficiently so he applied them harder. He left 22 paces or 66 feet of skid marks, which were on the northbound or his right side of the highway, and which moved at a slight angle toward the center white line to a point where there was a scarcely appreciable contact with the rear of the Killibrew car. The skid marks then showed a westerly movement to the southbound lane, and the deposition of heavy tire marks for 18 paces or 54 feet leading up to the point of collision with the Lopez car that caused the death of Miss Hill and the serious injury of Rickey Conard.
There was ample additional evidence tending to show that the brakes on the vehicle driven by the defendant were not in proper condition and that the driver knew it. (See: Rawlins v. Lory, 44 Cal.App.2d 20, 23, 111 P.2d 973.) Kenneth William Rank, a college student and friend of James Richard Perry, testified that shortly before the date of the accident he was riding with Perry and Conard in the Chevrolet pick-up along a country road; an animal, a dog or cat, ran suddenly from the left of the roadway and Perry slowed down quickly, applying his brakes, which caught and caused the car to pull to the left.
The trial judge denied appellant's motion for a new trial based on 'the insufficiency of the evidence to justify the verdict.'
Summarizing, the evidence stated most strongly in favor of the respondents, as we must on this appeal, showed that the driver was propelling a vehicle with known faulty brakes in a 55 miles per hour zone at a speed of 70 miles an hour. He was entirely familiar with the highway in the vicinity. It was a narrow roadway restricted to operation of northbound vehicles in a single lane with numerous dips and crests which cut off vision of the road ahead. The driver nevertheless looked to his left at a fruit stand rather than keeping his eyes on the road. He must have known of the danger involved in traversing this highway at this speed and without giving undivided attention to the course he was taking. He knew that the dips and crests in the highway would hide a slow-moving vehicle in the single lane which was provided for his operation. He knew that his brakes were faulty. Notwithstanding all of this knowledge, he continued on his course at such a speed and in such a manner as to lead the jury to a conclusion that there was a 'wanton and reckless disregard of the possible result on his part.'
As is said in Goncalves v. Los Banos Mining Co., 58 Cal.2d 916, 918, 26 Cal.Rptr. 769, 770, 376 P.2d 833, 834:
'Wilful misconduct means intentional wrongful conduct, done either with knowledge that serious injury to the guests probably will result or with a wanton and reckless disregard of the possible results.'
It is clear that excessive speed, although not in itself conclusive, is a factor to be considered by the finder of fact. In Harlow v. VanDusen, 137 Cal.App.2d 547, 550, 290 P.2d 911, 913, it is said:
'Although, as stated by appellant, excessive speed alone is not necessarily wilful misconduct, nevertheless, as pointed out in respondents' brief,
In the Goncalves case, supra, 58 Cal.2d at page 918, 26 Cal.Rptr. at page 770, 376 P.2d at page 834, the Supreme Court says:
(Italics added.)
We believe that the instant appeal is controlled by the Goncalves case. As is said in a case having similar facts, Jones v. Ayers, 212 Cal.App.2d 646, at page 653, 28 Cal.Rptr. 223, at pages 228-229:
'The recent decision in Goncalves v. Los Banos Mining Co., supra , 26 Cal.Rptr. 769, 376 P.2d 833, has applied the concept of wilful misconduct in such manner as to be well nigh conclusive in the case before us.'
That opinion goes on to say:
'In that instance Menezes, the driver of the car in which plaintiff's decedent was a guest, was traveling at a speed of about 60 miles per hour, 5 miles in excess of the prima facie speed limit. ...
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Christian v. Bolls
...505, 509.) While the essence of wilful misconduct is essentially a question of fact to be submitted to the jury (Hill v. Perry, 224 Cal.App.2d 290, 295, 36 Cal.Rptr. 530), there must be some evidence to sustain such a theory. We find a total lack of evidence indicating wilful or wanton misc......
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