TAMARA JEAN BUNTON, a Minor, etc., et al., Plaintiffs and Appellants, v. ARIZONA PACIFIC TANKLINES, Defendant and Appellant.
Civ. No. 51298
First Dist., Div. One.
Mar. 25, 1983.
141 Cal. App. 3d 210
Robert E. Barnett, Michael C. Mattice and McPherson, Barnett & Mattice for Plaintiffs and Appellants.
Roger T. Stewart, Hardy, Erich & Brown and Weintraub, Benshlea, Hardy, Erich & Brown for Defendant and Appellant.
OPINION
HOLMDAHL, J.--This matter involves an appeal and a cross-appeal in a wrongful death and personal injury action. Leslie Bunton, mother of plaintiff Tamara and wife of plaintiff Randy, was killed as the result of a collision involving a tank truck and tank-trailer combination owned and operated by defendant Arizona Pacific Tanklines. Daughter Tamara was injured in the accident.
Plaintiffs sued defendant, and a jury verdict was rendered in their favor in the total amount of $572,307. Thereafter, following defendant‘s motion for new trial, the court entered an order conditionally granting a new trial.1 Plaintiffs appeal from the order. Defendant cross-appeals from the judgment based on the verdict.
We vacate the order granting a new trial and affirm the judgment.
In their appeal from the new trial order, plaintiffs make two arguments: (1) That the order was void because it was not made within the appropriate time limitation, and (2) that there is no substantial evidence in the record to support the order. For reasons which follow we concur with the first contention. Consequently, it is unnecessary to examine the second contention.
Judgment was entered on the verdict on December 19, 1979. On December 27, 1979, defendant filed its first notice of intention to move for a new trial. On January 3, 1980, the clerk of the court mailed notice of entry of judgment to the parties. The motion for new trial was heard by the trial judge on February 11, 1980. The court issued and entered its order granting the new trial on February 28, 1980, 63 days from the filing of the notice of intention to move for new trial, and 56 days from the mailing of notice of entry of judgment by the clerk of the court.
Thus, if measured from the date the notice of intention was filed, the order of February 28, 1980, was too late and therefore void, and the motion for new trial was denied by operation of law on February 25, 1980 (the 60th day after filing of the notice of intention). If, however, the appropriate measure is from the mailing of notice of entry by the court clerk, the order was timely.
The core question on appeal from the new trial order, then, is this: If any two of the events enumerated in
Both parties cite Iske v. Stockwell-Kling Corp. (1932) 128 Cal.App. 192 [17 P.2d 203]. Plaintiffs cite it as authority that when the notice of intention to move for a new trial precedes notice of entry of judgment, the 60-day period ends on the 60th day after the notice of intention. Defendant attempts to distinguish Iske on the basis that at issue in that case was the determination of the final day for filing a notice of appeal, which in turn depended on a determination of the day when a pending new trial motion was resolved by operation of law.
A detailed criticism of defendant‘s effort to distinguish Iske is unnecessary due to the existence of a later case, Rubens v. Whittemore (1934) 2 Cal.App.2d 575 [38 P.2d 153], cited by neither party, which applies the Iske rationale to a fact situation practically identical to the instant case.
In Rubens, the notice of intention to move for a new trial was filed on August 24, 1931, and notice of entry of judgment was served on October 23, 1931. The order granting a new trial was made on December 18, 1931. The Rubens court made the following analysis: “The other point raised, namely, that the court was without jurisdiction to make the order because the time had expired, is answered when it is determined when the time commenced to run. If the time in which the court could grant plaintiff a new trial as to defendant Arrowhead Highlands Company commenced to run on August 24th, the date of the notice of intention, the time within which the court might grant a new trial had expired before the order was made. If the time commenced to run October 23d, the date on which notice of entry of judgment was given, it had not expired on December 18th when the order was made. This question is answered in appellant‘s favor in Iske v. Stockwell-Kling Corp., 128 Cal.App. 192 [17 Pac. (2d) 203, 204]. In that case a notice of entry of judgment was filed four days after the filing of a notice of intention to move for a new trial. It was contended there, as here, that the time commenced to run upon the later date. The court, after quoting the provisions of
Defendant contends that Iske does not apply, a contention it bases, in part, on amendments to
As later amended,
We conclude that the later amendments to
An additional irony exists here, inasmuch as it was defendant‘s own, prompt filing of its motion that triggered commencement of the 60 days; yet, it had no ability to control the running of the time nor, under ordinary circumstances, any ability to compel the court to act sooner.
Defendant urges us, therefore, to extend to this case and to
Considering defendant‘s participation in and responsibility for the loss of well more than the marginal, fatal three-day excess, we cannot extend the Bennett principle to this case.
Defendant also argues that it was sufficiently misled by plaintiff as to the 60-day period to require invocation of equitable estoppel as applied to
We do note indications in the record before us that both parties, and perhaps the court itself, misinterpreted
We note also that had the Bennett and Borglund courts not created judicial exceptions to the respective statutes, those cases never would have gone to trial. The case before us has been tried and defendant has had its day in court although, admittedly, it seeks a retrial and would have a right to one but for the statutory mandate and the delay.
We conclude that
Thus, we are compelled by the mandates of the statute and the several cases interpreting it to conclude that the court no longer had jurisdiction to issue an order for new trial when it purported to do so and the order is, therefore, void.
Consequently, we do not pass on the merit of the trial court‘s granting of a new trial.
In its cross-appeal, defendant contends that: (1) The court erred in refusing to instruct the jury on the issue of intervening and superseding causes; and (2) the evidence was not sufficient to support the jury‘s finding that defendant was negligent and that such negligence was a proximate cause of plaintiffs’ injury and damages. Since examination of both contentions requires recourse to the facts, we begin with a statement of the facts as the jury must have found them.
Statement of Facts
Leslie Bunton, plaintiffs’ decedent, was 27 years old when she was killed and her 4-year-old daughter, plaintiff Tamara, injured, on eastbound Interstate 80 as the result of a collision involving several vehicles, including defendant‘s truck-trailer combination.
The combination weighed some 26,000 pounds and, on the morning of the accident, it carried a payload of 46,000 pounds of coconut oil. Defendant‘s driver had refused to take the vehicle from the Oakland, California, yard because the brakes “weren‘t right” on the trailer. There was no mechanic available at the Oakland yard and none was called. Instead, the driver and a steam man, neither of whom had ever had any mechanical training, adjusted the brakes. The method of adjustment was by sound; that is, they tightened the adjustment and then backed off until a certain sound was heard. They made no visual inspection of the adjustment. Postcollision investigations by two California Highway Patrol vehicle safety inspectors the following Monday revealed a defective left rear trailer brake, the existence of which was in violation of
Leslie Bunton was an experienced automobile driver. Her husband, a former amateur auto race driver and a mechanic, had instructed her about high-speed car handling techniques. She had driven many hours on the freeway between their Fairfield, California, residence and homes of relatives in Los Angeles and Salt Lake City. She also had developed a habit of driving in the slower freeway lanes, such as lanes 3 and 4 at the involved part of Interstate 80.5
A wrong-way driver, Berger, driving at a high rate of speed and in what was described as a suicidal manner suddenly confronted Kaliski in lane one.6 Kaliski avoided Berger by moving to his right. The blue pickup truck was then struck headon by Berger and spun to the right; the campershell disintegrated into a cloud of dusty debris.
Defendant‘s driver testified that as he observed the wrong-way collision, he applied the truck and trailer brakes “all the way” and held the steering in place, attempting to guide his vehicles in a straight line. A remnant of the campershell passed in front of Leslie‘s Pinto. Plaintiffs’ accident reconstruction experts Walter Czuba and Howard Felter testified that, in their respective opinions, the truck-trailer combination was at this point skidding mostly along the right shoulder, but partially in lane four. The Pinto was mostly in lane three, with its right side overlapping lane four by about one foot. From their positions behind these vehicles, Raymond Briody and his passenger William Ward saw the Pinto and the truck-trailer combination enter and become partially obscured by the cloud of campershell debris. In the respective opinions of Czuba and Felter, the Pinto was now on a clear route to safety, as it would have passed to the right of the stricken blue pickup truck while maintaining a path parallel to the truck-trailer combination.
However, the trailer suddenly jackknifed, and swung wide to the left. Its left rear wheel struck and rolled over Leslie‘s Pinto. This impact, in turn, caused the right rear tire of the Pinto to leave a change-of-direction skid mark in lane four, just one foot to the right of lane three. Experts Czuba and Felter attributed the trailer‘s sudden jackknife and leftward movement to a defective, improperly adjusted left rear trailer brake.
Now out of control, the oil-laden trailer pushed, swung, and accelerated against the hitch, thrusting the rear of the truck and the front of the trailer five feet into the air. The trailer exerted sufficient lateral force against the truck to force it and the trapped Pinto across the right shoulder and over the embank-
Expert witness Czuba, with 40 years’ experience designing and evaluating braking systems, studied numerous photographs of the accident scene and the vehicles, and particularly of the defective left rear trailer brake. He testified that, in his opinion, there was a clear path of travel ahead of Leslie‘s Pinto while she was driving in lane three and taking slight evasive action to the right and she would have survived the wrong-way driver and subsequent collisions had the truck-trailer combination not jackknifed and swept to the left where it overrode the Pinto automobile. He concluded that a truck and trailer in proper mechanical condition would not have jackknifed in such a fashion.
Lauren Baptiste, a former driver for defendant, had driven an identical combination truck and trailer for 12 years and thousands of miles. He had made many emergency stops from 55 miles per hour without jackknifing or loss of control. He testified the truck and trailer units which struck the Pinto were the best handling of any truck and trailer unit on the road.
Plaintiffs also called California Highway Patrol Officer Howard Felter, who testified that he had reconstructed over 4,500 accidents in his 11 years on the patrol. He had within minutes arrived at the scene of this accident, before any debris had been removed or any vehicles moved. He found that the left rear trailer wheel was rotating at the time the other trailer wheels were locked and skidding, and concluded that the left rear brake was inoperative at the time of the impact. He personally studied the vehicles and, later, many photographs of the accident scene. He also testified that the uneven braking of the trailer caused it to go out of control and that such loss of control as occurred here should not have arisen in an emergency braking situation were the truck and trailer in proper mechanical condition. Officer Felter concluded that the Pinto and the left rear wheel of the jackknifing trailer collided, and that the swinging trailer caused a chain reaction between the truck, trailer, and Pinto, forcing the vehicles to a point of rest off the highway. The Pinto was crushed by the tanker in the process.
California Highway Patrol Vehicle Safety Inspectors R. J. Lockefeer and Jimmy Hurd testified that they had each worked with truck brakes on an almost daily basis for over 20 years. On the Monday following the collision, they found no collision damage to the left rear trailer brake. They disassembled the brake system, visually inspected it, and conducted brake application tests on the truck and trailer brakes. They found that the left rear trailer brake was so far out of adjustment that it was beyond the manufacturer‘s specifications and illegal. These defects rendered the left rear brake ineffective.
Intervening Cause
Defendant contends that the court committed prejudicial error in not giving the jury instructions on intervening and superseding causes.
Plaintiff‘s case centered on the defective brake on the trailer. Defendant contends that because of Berger‘s extraordinary conduct, because of the lack of causation between the defective brake and Berger‘s driving the wrong way, and because Berger‘s conduct was unforeseeable, there was evidence to support a finding that Berger‘s wrong-way driving was a superseding cause relieving defendant of liability.
Plaintiffs, on the other hand, contend, in essence, that it is the foreseeability of the risk of harm, not the foreseeability of the method by which the harm will be caused, that matters. They argue that defendant “owes a duty to other drivers on the roadway to keep its trucks’ brakes in good working order. It is foreseeable that some act will require brake application even though it is not necessarily foreseeable as to the manner in which this act will occur. Berger‘s driving the wrong way falls into a category of acts which are foreseeable, namely, acts which will require brakes to be applied.”
In this case, the initial negligence was defendant‘s failure properly to adjust the brakes. The intervening act---the wrong-way driver-was a type of road emergency. Road emergencies are reasonably foreseeable.
It has been stated that: “The foreseeability required is of the risk of harm, not of the particular intervening act. In other words, the defendant may be liable if his conduct was ‘a substantial factor’ in bringing about the harm, though he neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred.” (4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 629, pp. 2911-2912; italics in original.)
This approach was followed in Gibson v. Garcia (1950) 96 Cal.App.2d 681 [216 P.2d 119], in which one defendant negligently struck a defective wooden pole maintained by defendant street railway. The court said: “Respondent [railway] appears to contend that it is absolved from liability since it was not foreseeable that a motorist would negligently collide with its pole with such force as to cause it to fall upon plaintiff. However, in order to prevent an intervening act from being a superseding cause which will relieve the defendant of responsibility for his negligence, the law does not inevitably require that the precise act be foreseeable. Numerous cases have declared that if the defen-
Whether the hazard will come in the form of a wrong-way driver, a pedestrian, debris on the roadway, or some other typical or atypical form, the fact that one may encounter a hazard on the roadway necessitating use of one‘s brakes is a foreseeable risk.
On this basis, we conclude that the court did not err in refusing to give the requested instructions.
Sufficiency of the Evidence
Finally, defendant argues there was insufficient evidence to support the findings that it was negligent and that its negligence was a proximate cause of the damages sustained by plaintiffs.
We note initially that on appeal from a judgment in which it is contended that the evidence was not sufficient to support the findings of the jury, the standard of review is as set forth in Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429 [45 P.2d 183]: “In reviewing the evidence on such an appeal all conflicts must be resolved in favor of the respondent, and all legitimate and reasonable inferences indulged in to uphold the verdict if possible. It is an elementary, but often overlooked principle of law, that when a verdict is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court. [Citations.]”
With these well-settled rules in mind we summarize part of the evidence described earlier: There was evidence tending to demonstrate that untrained persons adjusted the brakes on the truck by sound. There was evidence showing that adjustment by sound does not insure proper adjustment. Investigation of the truck-tanker after the collision revealed that the left rear trailer brake was defective and ineffective. We think this evidence provides an adequate basis for a finding of negligence.
There was expert testimony that due to the defective brake, the trailer suddenly jackknifed and moved leftward. There was evidence showing that as it
The order for new trial is vacated. The judgment is affirmed. The parties to bear their respective costs on appeal.
Elkington, Acting P. J., concurred.
NEWSOM, J.-As to the appeal itself, I concur in the opinion of the majority because its construction of
It occurs to me that
It seems to me shameful, however, that large sums of money should change hands depending upon one‘s views of what this dismal, opaque statute means.
The petition of defendant and appellant for a hearing by the Supreme Court was denied June 1, 1983. Mosk, J., and Kaus, J., were of the opinion that the petition should be granted.