LEIN v. PARKIN

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District Court of Appeal, Second District, Division 3, California.

Julian LEIN, Plaintiff and Appellant, v. Roy PARKIN, Defendant and Respondent.*

Civ. 21881.

Decided: May 22, 1957

Pestana & Kidwell, Hollywood, and Hugh R. Manes, Los Angeles, for appellant. Hill, Farrer & Burrill, Kenneth J. Murphy and Henry E. Kappler, Los Angeles, for respondent.

Action for damages for personal injuries sustained when defendant's automobile, which was driven by defendant and in which plaintiff was riding, went off the highway. In a nonjury trial, judgment was for defendant. Plaintiff appeals from the judgment and the order denying his motion for a new trial.

Appellant contends that the court erred in finding that there was an assumption of risk by plaintiff which barred his recovery in the action. He argues that since defendant did not plead that there was an assumption of risk by plaintiff such purported defense was not an issue in the case. He argues further that if such purported defense was an issue in the case the evidence was not sufficient to support the finding.

The complaint alleged that plaintiff was riding as a passenger in defendant's automobile; that the defendant was negligent in the operation of the automobile; that as a proximate result of defendant's negligence plaintiff was thrown from the automobile and injured. The answer denied that plaintiff was a passenger; denied that defendant was negligent; alleged that plaintiff was a guest, and that the accident was unavoidable.

Plaintiff and defendant became acquainted in the first part of June, 1953. At that time plaintiff desired to go to New York by automobile or bus to visit a relative and to seek employment; and defendant had planned to drive to New York in his automobile for a vacation. They agreed that they would drive to New York in defendant's automobile; that plaintiff would pay his own expenses and one-half the car expenses; and that plaintiff would drive one-half the time. On June 20, about 9:30 p. m., they left Los Angeles for New York in defendant's 1950 Studebaker automobile. They drove all night and arrived in Albuquerque, New Mexico, late the following afternoon. They remained in Albuquerque until approximately 4 o'clock the following morning when they resumed their trip. About 7:30 a. m., while defendant was driving and when they were approximately 10 miles from Tucumcari, the automobile went off the highway, and plaintiff and defendant were thrown from the automobile and injured. Plaintiff was asleep in the back seat of the automobile at the time the accident occurred.

Defendant testified that the accident occurred under the following circumstances: it was daylight and there was good visibility; there was little or no traffic; there were two lanes on the highway; the highway was fairly straight and was five to ten feet higher than the adjoining land; defendant was driving about 55 miles an hour; the right front wheel hit sand which was on the highway, and the automobile skidded, went off the highway, over a fence, and came to rest right side up. He testified further that he did not see the sand before the automobile hit it.

Plaintiff testified, on direct examination, that he did not remember the accident; that while he and defendant were in the hospital, defendant told him that defendant was driving ‘around 80 miles an hour’ when the automobile hit the sand. Plaintiff also testified, on direct examination, that defendant was ‘always in a hurry’; defendant told plaintiff that he wanted to get to New York in ‘about three to four days'; when plaintiff was driving, defendant said: ‘We got to get there. We can't waste time. We want to get there as fast as we can’; when plaintiff drove slowly, by reason of road conditions, defendant said, ‘For God's sake, come on, let's go’; on one occasion when plaintiff was driving about 45 miles an hour, the automobile skidded; there was sand on the highway; plaintiff drove at an average speed of 45 to 60 miles an hour; defendant drove 75 to 80 miles an hour, and on those occasions plaintiff said, ‘For God's sake, we'll get there, let's make sure we get there; let's slow down’; on two occasions prior to the accident, the automobile skidded when defendant was driving; defendant would ‘slow down’ when plaintiff requested him to do so; on the last driving ‘shift’ before they arrived in Albuquerque, defendant drove at an average speed of 75 miles an hour; when they were arriving in Albuquerque, defendant said that he was going over 80 miles an hour. On cross-examination, plaintiff testified, without objection, that on more than one occasion before they arrived in Albuquerque plaintiff complained about defendant's manner of operating the automobile; and plaintiff told defendant that defendant was driving too fast.

Defendant testified further on direct and cross-examination, without objection, regarding the following matters: the speed of the automobile when he was driving and when plaintiff was driving; conversations with plaintiff as to speed; conditions of the highway; skidding of the automobile prior to the accident; and the various stops which they made and the time consumed when they stopped.

The court found that plaintiff was riding as a passenger in defendant's automobile; at a point on Highway 66 near Tucumcari, New Mexico, defendant negligently operated his automobile; plaintiff was ‘not guilty of any negligence which proximately caused the accident’; there was an assumption of risk on the part of plaintiff which barred his recovery in the action.

As stated above, plaintiff argues that since defendant did not plead that there was an assumption of risk by plaintiff such purported defense was not an issue in the case. It is true that defendant did not plead assumption of risk by plaintiff. As above shown, however, plaintiff introduced evidence relevant to the issue of assumption of risk—that is, plaintiff testified that defendant drove at a high speed before they arrived in Albuquerque, that he (plaintiff) made several protests regarding the high speed, and that at various times defendant made statements to the effect that he was in a hurry to get to New York. It thus appears that plaintiff presented evidence to the effect that he was apprehensive of his safety in riding in the automobile while defendant was driving. Defendant testified that he drove at an average speed of 55 miles an hour. On cross-examination, plaintiff asked defendant if, on several occasions, he asked plaintiff to drive faster. Defendant replied that he did ask plaintiff to drive faster, and that plaintiff said that he thought he was going fast enough. Also on cross-examination, defendant said that plaintiff drove at an average speed of 30 miles an hour. Other questions by plaintiff on cross-examination of defendant were intended, apparently, to elicit testimony that on the day previous to the accident defendant was driving much faster than 55 miles an hour, and that plaintiff had made protests as to the manner in which defendant was driving. It thus appears that on cross-examination of defendant, plaintiff sought to prove that defendant was in a hurry to get to New York and that defendant's manner of driving was hazardous. As above stated, the court found that defendant was negligent, and there was an assumption of risk by plaintiff.

The rule with reference to pleading assumption of risk is similar to the rule with reference to pleading contributory negligence. In Gerfers v. San Diego Transit System, 126 Cal.App.2d 733, at page 735, 272 P.2d 930, 931, it was said: “As a general rule, the contributory negligence of plaintiff must be specially pleaded by defendant in order that he may rely on such defense, but where plaintiff's contributory negligence appears from the allegations of his complaint, or from evidence introduced in his behalf, the plea of contributory negligence is available to the defense, although not pleaded in the answer.” Also in that case the court said in 126 Cal.App.2d at page 737, 272 P.2d at page 932: ‘It is apparent from plaintiff's evidence alone that the jury might well have found plaintiff to have been guilty of contributory negligence in attempting to change her position at the rail to a vacant seat on a moving bus without taking the precaution of engaging the use of handles on the bus seats for support.’

In Queirolo v. Pacific Gas & Electric Co., 114 Cal.App. 610, at page 614, 300 P. 487, at page 489, it was said: ‘Although contributory negligence be not pleaded as a defense—which was the case here—if it appears from the evidence introduced by the plaintiff that he was guilty of such negligence, the defense may be availed of though not pleaded.’

In 19 California Jurisprudence, page 681, section 104, it was said: ‘Of course, if it appears from the allegations of the plaintiff's complaint or from the evidence introduced by him that he has been guilty of contributory negligence, the defense may be availed of, even though not set up by defendant.’

Plaintiff introduced evidence from which it could be inferred that there was an assumption of risk by plaintiff. Plaintiff argues further, however, that the evidence introduced by plaintiff, which was relevant to the issue of assumption of risk, was also relevant to the issue of defendant's negligence, and that under such circumstances it cannot be deemed that plaintiff, by the introduction of such evidence, consented that assumption of risk was an issue even though not pleaded. As stated by the trial judge, at the close of the trial, the doctrine of res ipsa loquitur was applicable herein. Plaintiff was asleep when the accident occurred, and defendant, who was driving at the time of the accident, was the only witness with respect to the operation of the automobile immediately preceding the accident. Such evidence raised an inference of negligence on the part of defendant. See Scott v. Burke, 39 Cal.2d 388, 392, 398, 247 P.2d 313. The evidence developed by plaintiff as to the manner in which defendant had driven on the day before the accident and the protests registered by plaintiff was not elicited by plaintiff for a limited purpose. It was the duty of the court to consider it for all purposes and plaintiff could not at a latter time boject to its consideration as relevant to assumption of risk. At the close of the trial, while the judge was reviewing the evidence, he stated that the defendant had proved the affirmative defense of assumption of risk on the part of plaintiff. The first time the plaintiff raised an objection that assumption of risk was not an issue was upon his motion for a new trial. Under the circumstances here, defendant was not required to plead assumption of risk. The finding that there was an assumption of risk on the part of plaintiff is supported by the evidence.

The purported appeal from the order denying the motion for a new trial is dismissed. The judgment is affirmed.

PARKER WOOD, Justice.

SHINN, P. J., and VALLEÉ, J., concur.

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