Walker

I concur in the order reversing the judgment but place my concurrence upon grounds other than those set forth in the foregoing opinion. In order to make my position clear, it is necessary to further review some of the facts of the case which are not particularly emphasized in the opinion of my associate.

The road over which appellant was driving just before the accident was not smooth. He described it as having a high center, and narrow, and with deep ditches on either side. He had been over the road many times. I quote from his testimony: “Q. . . . Eliminating the question of duty and considering the question of the condition of that highway, would you drive in excess of 40 miles an hour, ordinarily over it? A. No. Q. And you would not because of the condition of the highway, isn’t that a fact? A. Yes.” There is no evidence indicating that any duty required appellant to drive at a high rate of speed at the time of the accident.

Respondent testified that she became frightened at the rate of speed at which appellant was driving and saw that the speedometer was registering sixty miles an hour. -She asked him not to drive so fast, but he increased his speed. She asked him again…

The essential facts developed on trial are: That both parties were employees of Fresno County, defendant a traffic officer, plaintiff a visiting nurse. Both had reason to go out of town on business connected with their work. Defendant invited plaintiff to ride with him and he would go first to the place he was to visit and then take her to the place she must go. The road at the place of the accident was paved with bitumen to the width of sixteen feet with dirt shoulders two or three feet wide on each side, making the width about twenty-two feet in all. It is described as of old-fashioned construction, crowning in the center, and not very smooth. A cement culvert crossed under the road, on the end of which was some sort of cement guard, three feet high, into which the car ran, the track marks showing a sudden sharp deflection from its course into the cement culvert. Both parties were injured and neither was able to tell what happened nor what caused the car to leave the road. No other ear was passing. Defendant was driving around sixty miles per hour and plaintiff protested that it was too fast. The steering gear was worn and unsafe, of which defendant had been notified.

The…