SOL M. FRIEDMAN and LEAH FRIEDMAN, Husband and Wife, Appellants,
CARRIE FRIEDMAN, Administratrix of the Estate of BERT L. FRIEDMAN, Deceased, Appellee, and SOL M. FRIEDMAN, Appellant,
CARRIE FRIEDMAN, Administratrix of the Estate of BERT L. FRIEDMAN, Deceased, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Judgment affirmed.
Mr. T. E. Scarborough, Messrs. Ingraham & Farmer and Messrs. Struckmeyer & Jennings, for Appellants.
Messrs. Elliott & Snell, for Appellee.
[40 Ariz. 97] LOCKWOOD, J.
This is a consolidation of two cases tried in the superior court of Maricopa county. Sol M. Friedman and Leah Friedman, his wife, hereinafter called appellants, filed separate actions for damages for personal injuries claimed to have been sustained by them through the negligence of Bert L. Friedman, hereinafter called appellee, in an automobile accident which occurred on March 9, 1930, on the public highway in Imperial county, California, while they were riding as his guests. The two actions were consolidated for the purpose of trial, and, at the close of appellants' case, appellee moved that the jury be instructed to render a verdict in his favor on the ground that no reasonable man could draw any inference from the evidence except that appellants were guilty of contributory negligence. The court, after listening to the argument of counsel, stated it was of the opinion that any negligence of appellee was attributable to appellants under the testimony, and therefore instructed the jury to return a verdict in favor of appellee. After the usual motion for new trial was overruled, this appeal was taken. Since the record herein was filed appellee has died, and [40 Ariz. 98] Carrie Friedman, his administratrix, has been substituted as a party.
The particular negligence charged in the complaint is as follows:
"That the said accident and injury was the result of and caused by the gross negligence of the defendant in that at the time the defendant invited the plaintiff to ride in said automobile and at the time of said accident, the engine head, cylinder block, piston rings and gaskets in said automobile were old, badly worn and leaky, and the ignition system and wiring on said automobile were old, worn and not properly insulated, and the gasoline and oil lines on said automobile were old, worn and leaky and the brakes on said automobile were old, worn and not properly adjusted, all of which was well known to the defendant, at the time he invited the plaintiff to ride in said automobile and at the time of said accident, and that the plaintiff did not know, and had no means of knowing of said defective condition of said automobile; and that by reason of said defects and condition of said automobile, the said automobile was unsafe and dangerous to drive upon the public highways at more than twenty miles an hour, or at all. That at the said time and place the defendant, knowing of said defects, negligently drove said automobile at an excessive, unlawful, careless and reckless rate of speed, to-wit, sixty-five (65) miles per hour, over the protest and against the wishes and consent of the plaintiff, thereby causing said automobile to catch on fire, and that by reason of said fire and said high rate of speed the defendant became excited and caused said automobile to swerve to one side and off the main traveled portion of the highway and turn over, doing great bodily injury to the plaintiff. . . ."
The evidence, taken in the strongest possible manner in favor of appellants, shows that appellee had invited appellants to take a trip with him from Yuma to Calexico, California. As soon as they got fifteen or twenty miles out of Yuma, appellee began driving at the rate of about fifty-five to sixty-five miles per [40 Ariz. 99] hour. Appellants objected most strenuously to this high rate of speed, and appellee promised
to slow up, and did so, but in a few miles again began speeding. Between Yuma and Calexico this same performance was repeated at least two or three times -- appellee speeding up, appellants objecting, appellee slowing down for a short time, and again speeding up over the objection of appellants. Appellee's father and another guest were also in the car, and they, too, protested. Shortly after leaving Calexico on the return trip, the same thing began again, appellee speeding up, appellants or some of the other inmates of the car objecting to the excessive speed with the result that appellee would for a short time lessen his speed and then again increase it. Some eight or ten miles out of El Centro, on the return trip, and while the automobile was running at a high rate of speed, it burst into flames, ran off the road, and overturned, injuring appellants.
The accident occurred in the state of California, and, while an action of this nature is transitory, and since Maricopa county was the residence of appellee, the superior court of such county had jurisdiction thereof, the liability of appellee should be determined, not by the law of Arizona, but by that of California. This is true as to the right of recovery for negligence. Hall v. Hamel, 244 Mass. 464, 138 N.E. 925; 45 C.J. 1046. It is also true as to the defense of contributory negligence. Central Vermont R. Co. v. White, 238 U.S. 507, Ann. Cas. 1916B 252, 59 L.Ed. 1433, 35 S.Ct. 865; Keane Wonder Mining Co. v. Cunningham, (C.C.A.) 222 F. 821; Caine v. St. Louis & S.F.R. Co., 209 Ala. 181, 32 A.L.R. 793, 95 So. 876; Long v. Atlantic Coast Line R. Co., (C.C.A.) 238 F. 919; Riley v. Kansas City Southern Ry. Co., 256 Mo. 596, 165 S.W. 1043. For this reason it is unnecessary that we consider whether the provisions [40 Ariz. 100] of article 18, section 5, of the Constitution of Arizona would apply to an accident occurring under these circumstances within the state of Arizona.
The courts of California have had before them repeatedly the question as to the duty of a guest riding in an automobile when the driver is clearly guilty of negligence. The rule prevailing in that state is stated by the court in Curran v. Earle C. Anthony, Inc., 77 Cal.App. 462, 247 P. 236, as follows:
"The duty of a passenger to remonstrate against excessive speed or to withdraw from the vehicle, a reasonable opportunity therefor being afforde, is not absolute, the question whether by failing to do either he is wanting in ordinary care being dependent upon the circumstances of the particular case. Dowd v. Atlas T. & A. Service Co.,187 Cal. 523, 202 P. 870. While one who knows, or should know, that the driver is carelessly operating the car must use ordinary care for his own safety, and it is incumbent upon him to take proper steps for his own protection, still whether by failing to protest against the course being pursued by the driver, or to leave the vehicle, constituted a want of ordinary care which proximately contributed to his injuries was a question of fact to be submitted to the jury, unless from the evidence but one conclusion might reasonably be drawn.Nichols v. Pacific Elec. Co.,178 Cal. 630, 17 ...