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

SPARRER et al. v. KERSGARD et al.†

Civ. 10699.

Decided: April 26, 1938

Frank V. Campbell and Walter E. Rankin, both of San Jose (Robert E. Hayes, of San Jose, of counsel), for appellant. Jensen & Holstein and Robert E. Cassin, all of San Jose, for respondents.

This is an action for damages for personal injuries incurred by the plaintiff Louise A. Sparrer, a guest in the defendant's automobile at the time of the accident complained of. The plaintiff was a minor and her parents joined as parties plaintiff. Alfred O. Kersgard, the owner and driver of the automobile, was a minor, and prior to the date of the trial his father was appointed his guardian ad litem. For the purposes of this opinion, Louise A. Sparrer, the passenger, will be referred to as the plaintiff, and Alfred O. Kersgard, the driver, will be referred to as the defendant. The action was tried before the lower court sitting with a jury. A verdict was returned in favor of the plaintiff, and from the judgment entered thereon the defendant appealed. In his brief he presents many points, the principal one of which is that the evidence did not warrant the jury in bringing in the verdict finding the defendant had been guilty of willful misconduct, such as to make the defendant answerable to the plaintiff in damages under section 403 of the Vehicle Code, St.1935. p. 154.

On November 11, 1936, the plaintiff, a girl of eighteen years of age, was residing with her family at Willow Glen near San Jose. At that time she was in her senior year in high school. At some time in the past she had traveled the streets and roads hereinafter referred to, but the dates on which she had done so and the extent to which she had traveled said roads does not appear in the record. Some three or four months prior to the date above mentioned the plaintiff had met the defendant. After they became acquainted she had ridden with him on various occasions. At certain times she “went out with him.” During that entire period and down to the date of the accident they were “good friends.”

On November 11, 1936, no schools were held; however, the next day was school day and both parties were intending to attend their classes. The defendant had not prepared his lessons and at the time of the accident, about 8:45 p. m., was returning for the purpose of doing his home work. He owned a model A Ford coupe. Shortly after noon he called at the residence of the plaintiff and the two went to attend a football game in the stadium at San Jose. A short time before the game was finished the plaintiff and the defendant entered the automobile and started for a drive toward the Big Trees in Santa Cruz. On the outward road they paused at Holy City and there they entered a soft drink parlor and had a drink of Coca–Cola. Having had that refreshment they turned back to return to their homes. Between Holy City and Los Gatos, the exact place not specified in the record, the plaintiff complained to the defendant that he drove too fast. He testified that she made no other complaint on that subject during the day. The plaintiff testified she made the complaint above mentioned. She also testified that: “Any number of times I had cautioned him about his driving but never really told him to slow down.” The record does not disclose it was her contention that she had so cautioned the defendant on any other occasion on the date the accident occurred. The plaintiff testified that the defendant drove 50 miles an hour; sometimes that he drove at that speed around curves; and sometimes that he did not travel that fast. She testified that at times he drove on the left–hand side of the road. She did not specify any time or place except as will hereinafter be noted. She also testified that she did not drive a car, that she did not see the speedometer, that the dash light was not burning, and that during a portion of the time it was dark.

In presenting the case in the trial court the defendant used a diagram, Defendant's Exhibit C. On that diagram a section of the road leading from San Jose to Los Gatos is drawn. Another road known as Dry Creek road branches off of the former and leads to Willow Glen. The record discloses that the defendant traveled the latter road when attending the high school a year and a half previously. How frequently he traveled the road the record does not disclose. However, it does appear that since his high school days the road has been changed and paved, although the changes made are not disclosed in the record. Traveling northerly on the San Jose–Los Gatos road on their return, the defendant turned into the Dry Creek road which leads easterly in the direction of the plaintiff's home. Dry Creek road is located in the bottom of a cut that was formerly a creek. The former banks of the creek arise on either side. The road leads down hill on a grade of about one–half of 1 per cent. The road contains different curves, some to the right, and some to the left. Some of the curves are sharp. The curve where the accident happened is 85 degrees––nearly a right angle, and is a curve to the right.

The plaintiff testified that as they proceeded along Dry Creek road the defendant drove 50 miles an hour, that the car swayed, and that she was holding onto the seat. Continuing, she testified as follows: “The accident happened on a turn. As we approached that turn Mr. Kersgard took the turn as it came. I know that the car turned over. I was more or less stunned. I was not knocked unconscious. We were thrown out of the car. After the accident the car was facing the opposite direction. Before the accident the car, I imagine, was just about the middle of the road. We had been traveling about the middle. I mean we had been traveling in the center of the road. There was no white line on that road. As we approached the curve where the car left the roadway that is a sharp turn. Where the Dry Creek road leaves the San Jose–Los Gatos road there is a service station. As Mr. Kersgard came down from the service station he continued his same course of speed.” The plaintiff did not claim she knew of the approach to the sharp turn, nor did she claim the defendant had any information on the subject.

The defendant testified that as he approached the turn he was driving at about 45 miles per hour, although, as he stated, he did not have a dash light and did not look at the speedometer––“I know it was between 35 and 45 somewheres––between 35 and 40 miles when I went around this particular curve. Coming down from Santa Cruz from Holy City when there was straightway I went 45 miles an hour and slowed down a little bit on the corners. I would not know exactly how much I slowed down because as I say there was no light on the dash and I couldn't see the speedometer. * * * As we left the intersection of the two roads I slowed down gradually and then as I got down to this straightaway I picked up speed. The car had lights and they were lit and in good order. It had brakes but after the accident I found that one of the front brakes was not very good. As I drove down the Dry Creek road I couldn't say definitely the speed I attained.” Continuing, the defendant testified: “As we approached this curve we were talking and didn't expect anything like that, and I drove right up to it, and the lights flashed on this telephone pole and it came so unexpected and I didn't apply the brakes any. I just went around the end of the road and had my foot off the gas as I started around the corner, and didn't expect such a sharp corner. I didn't know it was going to be such a sharp curve, I didn't know where it was going to come out of; and the wheels came off the pavement after we finished the curve, and the front wheels took hold and my body went forward and I put on the brakes and it just swerved the car around. * * * As I approached this curve here which I have just described I didn't know how sharp that turn was. * * * I had no intention of injuring either myself or Miss Sparrer as I approached that turn, I didn't have any intention of doing it purposely or anything of that sort.”

Besides the plaintiff and the defendant there was no other eyewitness. Immediately after the accident and before the car was moved the traffic officers arrived. They found the car on the bank at the side of the road on the defendant's right–hand side but facing in the direction from which it had come. It had turned completely over and end for end. It stood at a point about 100 feet forward from the apex of the curve. The last 120 feet of the path of the car in the road was marked by burned rubber skid marks on the defendant's left–hand side of the road.

After all of the evidence had been taken the defendant made a motion that the jury be directed to bring in a verdict in his favor. The trial court denied the motion and the defendant claims the trial court erred. We think that claim is well founded. It must be conceded at once that there was evidence that the defendant violated the statute prescribing the speed of motor vehicles and that he was driving on the wrong side of the road. St.1935, p. 176, § 510 et seq. But such facts, standing alone, do not constitute willful misconduct. McLeod v. Dutton, 13 Cal.App.2d 545, 549, 57 P.2d 189. There is no evidence that as the defendant drove down the Dry Creek road he knew, or should have known, of the location of said turn, or the nature of it. True, he traveled over the road a year and a half before when he went to high school. But the record shows that since that date the road had been paved and there is no evidence that the defendant traveled the road so frequently as to become familiar with each and every turn in it, and to be able, at 9 o'clock at night in the middle of November, eighteen months later, to retain a mental picture of each portion of the road and bear its nature in mind. He testified he had no such knowledge and such testimony is not contradicted by any evidence in the record. On the contrary, it will be presumed the defendant was not taking a chance of seriously injuring his “good friend,” the plaintiff, or of injuring himself. Code Civ.Proc., § 1963, subds. 1 and 4. Moreover, the defendant testified he was in a hurry to get home and prepare his lessons for the next day. That fact alone serves to contradict the contention that he was trifling with danger.

The plaintiff says the defendant testified he resided at Campbell. She argues therefrom that he always resided at Campbell. She also says he testified that a year and a half or two years before the trial, he attended high school and at that time traveled over the Dry Creek road. The plaintiff does not show the relative location of the high school the defendant attended from the town of Campbell, but she argues he was “familiar” with the Dry Creek road. It is sufficient to state that the record does not show the fact. She stresses the fact that she cautioned the defendant. As hereinabove recited there was evidence that she did so several miles back, but there was no evidence that she cautioned him as to any turn in the Dry Creek road.

We have set forth every material fact contained in the record. It is clear that the evidence does not disclose that the defendant, prior to entering the curve where the accident occurred, knew, or should have known, of the dangers in traversing it and therefore that the defendant is not liable. Helme v. Great Western Milling Co., 43 Cal.App. 416, 185 P. 510.

In the case entitled Meek v. Fowler, 3 Cal. 2d 420, at page 426, 45 P.2d 194, 198, the court said: “His conduct under the circumstances constituted, at most, gross negligence. Upon the record now before us, it cannot be said that he proceeded in utter disregard of, or that he was utterly indifferent to, the rights of his guests. While his judgment, under the circumstances confronting him, may have been poor, it does not appear that he was wantonly reckless in exposing his guests to danger, nor did his conduct partake of the nature of a willful, intentional wrong.” That language is peculiarly applicable to the facts in the instant case.

The judgment is reversed.


We concur: NOURSE, P. J.; SPENCE, J.

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