COOPER v. KELLOGG ET AL

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District Court of Appeal, Third District, California.

COOPER v. KELLOGG ET AL.*

Civ. 4825.

Decided: May 14, 1934

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

From the petition of respondent for a rehearing it appears that in the main opinion we perhaps laid too great stress upon the effect of the question, “Were you asleep?” and the answer thereto, “I must have been.” Conceding that respondent is correct in his contention that appellant, not having moved to strike out the answer as being the conclusion of the witness, he cannot now be heard to complain, we still are of the opinion that the answer is not responsive nor sufficiently enlightening upon which to base a finding. The witness does not state he was asleep, but only offers that supposition as an explanation of his conduct. He had previously testified that the window of the car on the driver's side was open and the rain and cool night breeze acted as a stimulant and he felt no indication of drowsiness.

As defendant was passing through Novato, about three miles from the point of collision, he testified he felt no indication of sleepiness, and even at a point one–half or three–quarters of a mile out of Novato near the point of collision, he testified he was wide awake. When asked on cross–examination the direct question, “You don't know why your machine ran into the automobile going in the opposite direction?” he answered, “No.” He also answered the question by the court as to whether or not he was asleep, and replying, “I must have been,” he was asked. “You don't know whether you were or not, Mr. Kellogg?” answered, “No, that seems to be the only logical conclusion to be drawn. Q. That is your conclusion as to what you thought might have happened? A. Yes.”

In addition to the foregoing, clearly the conduct of the driver of the car, in view of the explanation last given must be held to be gross negligence. While usually such a question is a finding of fact, we believe that here, in view of the facts surrounding the collision and the lack of explanation of the cause thereof, there is nothing left for the court to do but hold the injuries to plaintiff were the result of gross negligence.

Rehearing is denied.

PER CURIAM.

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