Cooper v. Lunsford

instead. Respondent, meanwhile, drank three scotch and sodas while in the kitchen. Appellant testified that she did not know that respondent had any drinks while she was in the kitchen, and further, that when respondent walked into the living room prior to their departure, she was carrying a cup similar to the one from which appellant had been drinking coffee. When they left Kim and Scotty, they proceeded in respondent’s camper-truck on San Fernando Road toward Newhall. Respondent was driving. The distance between the house and the point of the collision was estimated to be approximately 1% miles to 2 miles. Respondent testified that during the time immediately prior to the accident she probably exceeded the speed limit; that she was aware of the high winds and the washboard condition of the road. She remembered appellant saying something to her but that she continued to drive in the same manner. Appellant testified that she asked respondent to slow down but that respondent made no response except the final exclamation that the truck was out of control just prior to the collision.

The investigating officer testified that there were no skid or centrifugal marks on the highway, that the weather conditions were windy; and that, in his opinion, respondent had been ■ exceeding the posted speed limit. At the hospital following the accident, respondent denied that she had been drinking. She says she made the denial because she was afraid of a “502.”^[1] She later retracted the denial and testified to the facts heretofore outlined in respect of drinking.

Following the presentation of appellant’s case and the arguments of counsel, respondent having submitted her defense substantially on the testimony of the witnesses called by appellant, the jury at appellant’s request, was given the following instructions on the issue of assumption of risk:^[2] “When a guest assents to the wilful misconduct or intoxication on the part of the driver of a vehicle, so as to show a voluntary assumption of the risk, she is barred from recovering for her injuries.

“However, to constitute such an assent or such consent

on the part of the guest in the vehicle, there must be something more than mere silence on the part of the guest. There must be evidence showing that she knowingly concurred in the wilful misconduct and/or intoxication of the driver and that she knowingly accepted the risks of any wilful misconduct or intoxication, if there was any. In other words, the guest, to be barred from recovery, must have knowledge at the time of the dangerous ride, of the facts that made it dangerous to her, and she must have sufficient experience and understanding to appreciate the dangerous character of the conduct in question; and it means further that with such knowledge and such appreciation, she nevertheless lent her approval to any wilful misconduct or intoxication, if there was any.”^[3] (Italics added.)

At respondent’s request the jury was instructed “A person is said to assume a risk when she freely, voluntarily and knowingly manifests her assent to dangerous conduct or to the creation or maintenance of a dangerous condition, and voluntarily exposes herself to that danger, or when she knows that a danger exists in either the conduct or condition of another, or in the condition. [sic] Use or operation of property, and voluntarily places herself, or remains, within the area of danger. (Italics added.)

“A person who thus assumed a risk is not entitled to recover for damage caused her without intention and which resulted from the dangerous condition or conduct to which she thus exposed herself.” (B.A.J.I., 207).^[4]

At respondent’s request the jury was instructed that “When upon entering a vehicle to accept a ride as a guest, a person knows that the one who is to operate the vehicle is intoxicated, the law holds that she assumes the hazard of her under

taking.... The same effect under the law also follows when, after having entered a vehicle, a guest learns that the driver is intoxicated, and the guest having a reasonable opportunity to alight, [at a reasonably safe place], fails to do so, thus voluntarily accepting the risks incident to the driver’s intoxication.” (B.A.J.L, 209-0.) (Italics added.)

Appellant contends that the trial court’s instructions on assumption of risk were erroneous, and therefore prejudicial error in the circumstances. We agree.

The instructions set out above misstated the law of assumption of risk.^[5] The general instruction contained in the old version of B.A.J.I., 207 was specifically rejected by the Supreme Court in Shahinian v. McCormick, 59 Cal.2d 554 [ 30 Cal.Rptr. 521 , 381 P.2d 377 ], as an inadequate statement of the law. Said ease holds (p. 567) : “ Actual knowledge of the particular risk and appreciation of the magnitude thereof are not interchangeable but are independent and essential elements of the doctrine. [Citations.] The two elements are distinct concepts, intended to convey two independent ideas to the jury. Proper instructions should embody both concepts.” (Italics added.)

Respondent urges that the trial court cured this erroneous instruction when it instructed the jury in the modified version of B.A.J.I., 209-Q since the latter instruction provided that the appellant must have "actual knowledge” of the facts that made the ride dangerous and that she must have sufficient experience and undérstanding to appreciate the dangerous character of the conduct in question. However, respondent is mistaken in her quotation of the given instruction. Nowhere in this particular instruction or in any of the court’s instructions was the jury told that appellant’s knowledge must be actual knowledge. Nor do any of the instructions inform the jury that the appellant must appreciate the magnitude of the actual risk known to her as contrasted to an appreciation of a generalized dangerous conduct.

The rule in Shahinian, supra, requires reversal of the judgment.

The rule of Shahinian is emphasized in Vierra v. Fifth Avenue Rental Service, 60 Cal.2d 266 [ 32 Cal.Rptr. 193 , 383 P.2d 777 ]. The court says at pp. 270-274: “The doctrine of assumption of risk is, of course, an affirmative and limited

defense. It applies only when the accident arises from a danger known to the victim before the accident, and where the evidence shows that the victim voluntarily chose to enter or to remain in the zone of known danger. Actual, and not merely constructive, knowledge of the danger is required....

“To warrant the application of the doctrine the evidence must show that the victim appreciated the specific danger involved. He does not assume any risk he does not know or appreciate.... Stated another way, before the doctrine is applicable, the victim must have not only general knowledge of a danger, but must have knowledge of the particular danger, that is, knowledge of the magnitude of the risk involved.

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“In the recent case of Hook v. Point Montara Fire etc. Dist., 213 Cal.App.2d 96 [ 28 Cal.Rptr. 560 ] ..., Judge Molinari held that it was error to instruct on the doctrine where the plaintiff may have known of the general danger of walking into a darkened room, but did not know that the floor level was 9 inches lower than the threshold of the door. The opinion cites many cases holding that actual knowledge of the particular risk and its magnitude are essential and approves that rule.” (Vierra v. Fifth Avenue Rental Service, 60 Cal.2d 266 , 270-274 [ 32 Cal.Rptr. 193 , 383 P.2d 777 ].)

Since a retrial may result, we proceed to some of the other questions raised.

Assumption of risk instructions were proper. Such instructions are warranted when there is evidence sustaining both elements of the doctrine. (Vierra v. Fifth Avenue Rental Service, supra, p. 274.) Such elements, however, need not be established as a matter of law; and the elements may be proven circumstantially by evidence from which the fact in question can reasonably be inferred. (Christensen v. Malkin,^[6] (Cal.App.) 43 Cal.Rptr. 669 .)

The record herein summarized contains evidence, both direct and inferable, on the issue of appellant’s actual knowledge of respondent’s intoxication.

We cannot say, as we are urged to do, that as a matter of law this evidence was insufficient to warrant an instruction on appellant’s assumption of risk of respondent’s intoxication. (DeArmond v. Turner, 141 Cal.App.2d 574 ,

578 [ 297 P.2d 57 ] ; Smith v. Baker, 14 Cal.App.2d 10 [ 57 P.2d 960 ].) The jury could have inferred that appellant’s experience as the operator and owner of a bar and the few drinks she was actually aware respondent had taken together with respondent’s continued absence in the kitchen, were sufficient to give her actual knowledge of respondent’s condition. (Little v. R. G. LeTourneau, Inc., 212 Cal.App.2d 71 , 76 [ 27 Cal.Rptr. 609 ]; Cooke v. Stevens, 191 Cal.App.2d 457 , 461 [ 12 Cal.Rptr. 828 ].)

Evidence to warrant the giving of an assumption of risk instruction as to respondent’s wilful misconduct is dubious.^[7]

Evidence that respondent drove her camper-truck in excessive speed, while intoxicated, over a washboard type road in windy weather, are links in the chain to establish wilful misconduct. (Cf. Goncalves v. Los Banos Mining Co., 58 Cal.2d 916 [ 26 Cal.Rptr. 769 , 376 P.2d 833 ]; Sholar v. Barker, 211 Cal.App.2d 31 [ 27 Cal.Rptr. 451 ]; Strnod v. Abadie, 181 Cal.App.2d 737 [ 5 Cal.Rptr. 627 ].)

However, there was no evidence that appellant actually knew the danger of these factors singly or in combination. Thus, there was no evidence that appellant actually knew, or as a reasonable person should have known, or facts from which it might be inferred that she actually knew, the unsteadiness of a camper-truck in windy weather, or that respondent would not slow down even after a protest. Consent cannot he present absent a showing from which such actual knowledge could be inferred by a jury on the facet of wilful misconduct. (Prosser on Torts, pp. 309-310.) It would appear that on the record before us it was erroneous to instruct the jury on assumption of risk in respect of wilful misconduct. (Vierra v. Fifth Avenue Rental Service, supra, 60 Cal.2d 266 , 274.)

Appellant further contends that the trial court erred in refusing to give an instruction on appellant’s right to assume the lawful conduct of others.^[8] However, the court’s