Elliott v. Kohler

Nolan, P. J., Schmidt and Murphy, JJ., concur; Wenzel and Ughetta, JJ., dissent and vote to affirm, with the following memorandum: Appellant had the burden of establishing respondent’s negligence and her own freedom from contributory negligence. She did neither. In our opinion it is contributory negligence as a matter of law for appellant to have embarked as a passenger in a car with two men, both of whom she knew to be intoxicated. If the accident occurred as she says it did, the proximate cause thereof was the opening of the ear door by the man sitting next to respondent, the driver, before the ear had stopped. Her version of the accident, however, is incredible as a matter of law. If she were sitting on the edge of the seat preparing to alight, as she testified, a sudden acceleration of the car would throw her backward and not forward out of the car and on her face. This is a physical law requiring no judicial interpretation.