COOPER v. KELLOGG ET AL

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District Court of Appeal, Third District, California.

COOPER v. KELLOGG ET AL.*

Civ. 4825.

Decided: April 14, 1934

James, Brann & Rowe, of San Francisco, for appellant. Bronson, Bronson & Slaven, of San Francisco, for respondents.

In this action plaintiff through his guardian ad litem sought to recover damages from defendants for injuries sustained while riding as a guest in an automobile driven by defendant Beecher Kellogg, the injuries being caused, so it was alleged, by the gross negligence of the defendant in the operation of the car. Upon the trial the court found against plaintiff and entered judgment in favor of defendant, from which plaintiff prosecutes this appeal.

The two principals were students at the Santa Rosa Junior College at the time of the injuries to plaintiff and were returning from a basketball game at San Mateo. They had reached a point on the main highway between Petaluma and Novato when the car driven by defendant collided with a car going in an opposite direction, causing the injuries to plaintiff. At or near the point of collision the concrete pavement of the highway was approximately twenty feet wide, marked in the center by the joint in the concrete, and had ten–foot shoulders on each side. At the place of collision the highway is level and straight for a distance of about a quarter of a mile in both directions. Just beyond the quarter–mile straightaway in the direction from which defendants' car was coming there is a gradual curve in the road. The accident occurred about 2 o'clock in the morning; there was a slight rain, but the visibility was good. Plaintiff was asleep at the time of and immediately preceding the collision. Kellogg, the driver of the car, testified he did not see the car with which he collided and did not know how the accident happened. Mr. Dresbach, the driver of the other car, testified he saw the headlights of the Kellogg car just after it made the turn and when it was approximately a quarter of a mile away from him, at which time it was proceeding in a general northerly direction on the right or easterly paved portion of the highway. When the Kellogg car was about 150 yards away from his car, Dresbach noticed the approaching car was gradually bearing from its proper side of the highway to the left. When he noticed this he applied the brakes to his machine and began to drive his car off the paved portion until all four wheels were entirely off the pavement of the westerly side of the highway. The Kellogg car continued on its course across the highway until it struck the Dresbach car almost head–on. At the time of the impact the Dresbach car was traveling from two to four miles an hour; the Kellogg car was traveling approximately twenty miles per hour. The headlights of both cars were lighted before and at the time of the impact. From the time Dresbach first observed the Kellogg car veering from the right he traveled approximately fifty yards, while the Kellogg car traveled approximately one hundred yards in the same length of time. There were no other cars or vehicles upon the highway in the vicinity at the time of the collision.

We cannot agree with the trial court that upon this testimony the defendant was not guilty of negligence. It is apparent that the collision was caused by the defendant leaving his right side of the highway and driving across the pavement to the left until he crashed head–on into an automobile headed in the opposite direction then almost at a standstill, which automobile, to avoid the impending crash, had been driven off the pavement and upon the unpaved shoulder adjoining the highway. It cannot be denied that defendant in operating his car in this manner and along such a course violated the provisions of section 122 of the California Vehicle Act (St. 1923, p. 557, as amended by St. 1929, p. 540) and was therefore guilty of negligence as a matter of law.

Having determined the collision was the result of the negligence of the defendant, it now becomes necessary to find the degree of negligence, for plaintiff, being a guest, can recover only if this negligence was gross. It was originally claimed by defendants that the cause of action for gross negligence was abated by the amendment of the statute in 1931 (St. 1923, p. 517, § 141 3/4, as added by St. 1929, p. 1580, as amended by St. 1931, p. 1693), subsequent to the accident which occurred in October, 1930, and that the only recovery possible was restricted to cases of intoxication or willful misconduct. This conclusion is now abandoned in view of the recent holding of our Supreme Court in Stotts v. Blickle (Cal. Sup.) 30 P.(2d) 392, reaffirming the rule that the amendment of 1931 to section 141 3/4 of the California Vehicle Act did not abolish an existing cause of action for injuries to a guest because of the gross negligence of the driver, which accrued prior to the effective date of the amendment. “Gross negligence” has been defined as “want of slight care” or “an entire failure to exercise care, or the exercise of so slight a degree of care as to justify the belief that there was an indifference to the interest and welfare of others.” Redington v. Pac. P. T. C. Co., 107 Cal. 317, 40 P. 432, 434, 48 Am. St. Rep. 132.

Under the facts here before the court the evidence shows without conflict that Beecher Kellogg could have seen the headlights on the Dresbach car when he was a quarter of a mile away. There were no obstructions or other vehicles on the highway and the visibility was good. The impact occurred off the highway and on defendant's left thereof. Kellogg, the driver of the car, offered no explanation as to why he did not see the approaching car nor its headlights nor why he was on the left side of the highway and practically off the paved portion thereof. He stated he had no premonition or feeling of drowsiness. The foregoing brings this case within the rule of Kastel v. Stieber, 215 Cal. 37, 8 P.(2d) 474, and Malone v. Clemow, 111 Cal. App. 13, 295 P. 70, 72, in which latter case the court said: “Undoubtedly, respondents in these cases made out at least a prima facie case of gross negligence against the appellant Florence Clemow. The evidence shows without conflict that Florence Clemow, the driver, could have seen said tail–light on the truck upon which it was placed at least two hundred feet to the rear thereof; there was no obstruction to prevent her seeing the truck; the night was clear; the street was artificially lighted; the body of the truck was visible to persons driving up the street; the street was straight for some distance to the rear of the truck; her course was not interfered with by any other obstacle or traffic; on the left rear end of the parked truck was a red lighted tail–light, visible for a distance of at least two hundred feet along the course of travel of appellant's automobile, and that the right front fender, or front part of her automobile, struck the left rear corner of said truck. Mrs. Clemow drove the automobile from Burbank, in Southern California, to Oakland, in one day, and was driving along East Fourteenth street in Oakland, and had been traveling for several blocks at a speed of from thirty to thirty–five miles per hour. No explanation was offered why she did not see the parked truck and its tail–light within about twelve feet distance therefrom.”

Appellant also urges the trial court erred in overruling his objection to a question by the court. At the conclusion of the examination of defendant by respective counsel the following occurred:

“The Court: Q. Were you asleep? * * *

“Mr. Rowe: I would like to interpose the objection it is incompetent, irrelevant and immaterial, calls for the opinion and conclution of the witness. * * *

“The Court: I will overrule your objection. Were you asleep? A. I must have been asleep.”

From this it is apparent that the defendant Kellogg's answer that he must have been asleep at the time of the accident is but his conclusion and the objection thereto should have been sustained. With this answer out of the record there is nothing upon which the court could have based its finding that defendant was asleep and therefore not guilty of gross negligence. We need not here discuss the question as to whether or not to sleep at the wheel of an automobile constitutes gross negligence, as we have already indicated that the defendant was guilty of gross negligence in the operation of the automobile and that the findings of the court are not sustained by the evidence.

For the foregoing reasons the judgment is reversed.

Mr. Presiding Justice PULLEN delivered the opinion of the court.

We concur: THOMPSON, J.; PLUMMER, J.