Warren v. Sullivan

• Decision Date: 11 January 1961
• Citation: 10 Cal.Rptr. 340,188 Cal.App.2d 150
• Parties: Ida WARREN, Plaintiff and Appellant, v. Lilly K. SULLIVAN, Defendant and Respondent. Civ. 19058.
• Court: California Court of Appeals Court of Appeals

Page 340

10 Cal.Rptr. 340

188 Cal.App.2d 150

Ida WARREN, Plaintiff and Appellant, v. Lilly K. SULLIVAN, Defendant and Respondent.

Civ. 19058.

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

Jan. 11, 1961.

Hearing Denied March 8, 1961.

Charles O. Morgan, Jr., San Francisco, for appellant.

Pelton, Gunther, Durney & Gudmundson, San Francisco, for respondent.

SHOEMAKER, Justice.

Plaintiff Ida Warren, while riding as a guest in the automobile of the defendant driver, Lilly K. Sullivan, was injured when it collided with another automobile and wound up against a telephone pole. Plaintiff brought this action to recover damages for the injuries based on alleged wilful misconduct of the defendant. Defendant's answer denied any misconduct and alleged the defense of assumption of risk. Judgment after jury trial was rendered in favor of defendant, and plaintiff appeals.

At about 5:15 p. m. on November 28, 1956, respondent was driving north on Junipero Serra Highway a short distance south of the San Francisco county line. At that point the highway has four lanes, and respondent was in the lane nearest the center line. As she approached a 35 mph zone, she applied her brakes, the brakes 'grabbed' and suddenly pulled the car over into the southbound lane, whereupon her car hit a southbound car and then came to rest after hitting a power pole.

The parties to the litigation had been friends for years. On the day of the accident they had driven down to Palo Alto from San Francisco for an outing. On the way to Palo Alto the respondent commented to the appellant that the brakes seemed to 'grab' a little, and the car pulled over slightly. The appellant testified that she had never driven an automobile, and that she did not know what was meant by brakes 'grabbing.'

It is admitted by the appellant that she was respondent's guest during the auto trip, and that respondent had not been drinking. Therefore, to recover under the 'guest statute,' Vehicle Code, § 17158, the conduct of the host must have amounted to wilful misconduct. Olson v. Jones, 1959, 172 Cal.App.2d 539, 546, 342 P.2d 440. Wilful misconduct, as such term is used in the automobile guest law, consists in doing something that ought not to be done under the circumstances, or failing to do something under such circumstances which shows either knowledge that serious injury to a guest probably will result, or a wanton and reckless disregard of the possible results. Carmean v. Bridges, 1956, 142 Cal.App.2d 99, 101, 297 P.2d 671; Munson v. Friedman, 1957, 154 Cal.App.2d 73, 76, 315 P.2d 727. The existence of wilful misconduct is usually a question of fact (Fisher v. Zimmerman, 1937, 23 Cal.App.2d 696, 701, 73 P.2d 1243); and here the jury passed on the question under appropriate instructions. The only theory upon which wilful misconduct could be based is driving the car after noticing the brakes 'grab.' However, the evidence was that the pulling was only slight, the respondent attributed such to having had the car washed the evening before, that the had braked the car on the way to Palo Alto after the pulling incident without any further 'grabbing,' and that she did not think there was any danger involved. Since on appellate review all legitimate and reasonable inferences must be indulged to uphold the jury verdict if possible (Crawford v. Southern Pacific Co., 1935, 3 Cal.2d 427, 429, 45 P.2d 183), it must be implied that the jury found from the foregoing evidence that there was no wilful misconduct on the part of respondent. The judgment in this respect is well supported.

The appellant urges, however, that the giving of assumption of risk instructions constituted prejudicial error. The attack is made upon the propriety of giving the instructions, not upon their content, which was correct. The defense of assumption of risk is available when there has been a voluntary acceptance of a risk and such acceptance, whether express or implied, has been made with knowledge and appreciation of the risk. Restatement of the Law, Torts, § 893; Prescott v. Ralph's Grocery Co., 1954, 42 Cal.2d 158, 161, 265 P.2d 904. It was respondent's theory that appellant assumed the risk by returning from Palo Alto in the auto after respondent had told her the brakes had 'grabbed,' and the car was 'pulling over.' The appellant argues that she did not have knowledge of the hazard involved, pointing to her testimony to the effect that she had never driven, that she did not have any knowledge about automobiles, and that she did not know what was meant by 'brakes grabbing.' However, an objective standard must be applied to the question of knowledge; a plaintiff may not be heard to say he did not comprehend a risk which must have been obvious to him; knowledge and appreciation of danger is a question for the jury, and may be inferred from the circumstances. Gallegos v. Nash, San Francisco, 1955, 137 Cal.App.2d 14, 20, 289 P.2d 835; Gomes v. Byrne, 1959, 51 Cal.2d 418, 421, 333 P.2d 754. Since the question of the appellant's knowledge and appreciation of the risk is a jury matter, and since the instructions correctly stated the law, no error was committed by giving such instructions.

The appellant further argues that it was prejudicial error to instruct the jury on imminent peril. Once again the attack is made upon the propriety of the instructions, not their...