*1 Bank. Jan. 22855. In 1954.] A. No. [L. Appellants, v. WESTON al., et LAURA CUCINELLA al., Re- et (a Corporation) INC. COMPANY, BISCUIT spondents. *2 for Henry Appellants.
William W. Waters and F. Walker Liljestrom & Harold J. Hunter and Hunter Re- spondents. SCHAUER, Plaintiffs, who wife, husband and are. J.
appeal judgment upon jury from an adverse entered verdict damages in their resulting plaintiff action to recover when wife was struck an automobile she attempting while was city Angeles. to walk across Fernando Road in San Los prejudicial have that no error miscarriage We concluded justice judgment is shown and that the should be affirmed. (Cal. VI, Const., 4½.) art. § 9:30 in morning
The accident occurred about of April dry clear visibility 1950. The weather was was easterly good. Plaintiff1 had walked an halfway direction Road, highway Fernando across San north-south at the point 24 feet south of its involved, some intersection with paused at Lacy Street, and had the double white line in the waiting highway, for traffic “give center me a complete crossing. chance” to She testified that she suddenly frightened oncoming became an truck and, with- looking traffic, at further turned around in out a clockwise attempted westerly to return to the direction curb from point she had started. At feet from designation “plaintiff” stated the 1Unless otherwise refers to .the injured wife. traveling an automobile south on curb she was struck by defendant Smith and driven in the course San Fernando by defendant Weston employment Company, Biscuit his taking any steps did not remember after her Inc. Plaintiff Fernando, and the San next turn in the center she knew hospital. lying bed was was when she that he first testified saw Smith when Defendant away or 80 the" feet at which she he was some curb; that he traveling return to the was then attempted to were an and no ears hour, him; 30 or 35 miles ahead appeared into center of the street and plaintiff “ran steps past center, three then to take two or she whirled to ran the west ap-' her back towards curb ... straight proximately line.” Defendant was startled and my He brakes.” continued “to hold “slammed the brakes stopped, going approxi- on” until and stated he his car was mately plaintiff. he 3 miles hour when struck Defendant’s tires “laid down” 72 feet “skid-marks” in the street, expert computed from which an witness that the minimum speed lay “when traveling the car it first started to down skid-marks” was 36 an hour. miles
The drivers two cars which were traveling immediately (right behind defendant in the same or “curb”) hand lane traffic both testified that all three traveling cars were approximately 30 to 35 miles an hour, both drivers saw suddenly plaintiff turn her right in the center San Fernando and start to run back straight in a line the curb. One of the drivers testified that “There of heavy was a lot traffic . . . there on San Fernando Road morning.” that Other morning evidence established that traffic on San Fer- “heavy” nando during period the from 8 to 10 o’clock. appeal Plaintiff's first contention on that trial admitting in evidence of speed” court erred the “average by in the area of vehicles traveled the accident, in the face police testimony working officer that area San posted Road with Fernando 25-mile-an-hour speed limit iy2 approximately signs points at miles north and 1% Lacy of the Street miles south intersection. cross- On for counsel defendant examination was per- officer testify, objection by also over mitted to that plaintiff, he average speed “the usually “estimate” that traveled by motorists” 30 at that time was “about miles hour along Other evidence in there.” the record discloses that years immediately preceding five for some the accident employed laundry intermittently plaintiff had been Lacy intersection, and de- that at the Fernando San Fernando” on an aver- “up and down San fendant drove and thus was also familiar times a week age of several Plaintiff’s in which the accident occurred. with the area assumption predicated to be that arguments appear average speed traffic the area was as to the evidence solely to his own conduct excuse defendant offered admittedly posted excess limits. driving at a rate System Key (1951), v. Transit in Fowler Lines However, as 339], pleaded plain- defendant 65, P.2d 37 Cal.2d [230 proximately contributing guilty herself tiff was circumstances and in injuries. view Under to her attempted to return to curb plaintiff undisputed fact that might approaching, looking for traffic which without case, Fowler the evidence of here, as appears contributory negligence and was on the issue bore custom gestae purpose of the res part as a “admissible knowledge of all jury full the facts and cir- giving place time and of the acci- existed at the cumstances permit so parties, were known dent, which him- question of whether conducted upon the pass ordinary and reasonable would have con- as an self light of all of the circumstances.” himself ducted Cal.App.2d (1944), Cheney Bros. v. (Muir Key System 69 of quoted page at Fowler Transit 138], Lines, supra.) urges in the trial refusal error court’s next
Plaintiff during employment her prove her to permit laundry employes had as other cus as well laundry she point question, here in Fernando at tomarily crossed San marked there white had been formerly a crosswalk crosswalk had been authorized and marked that a lines, city authority.” by “competent How point at the directed pedes 125 and 150 testimony showed that between ever, other daily Road at between Fernando crossed San trians prior to accident that some six months p. m., m. and 6 7 a. *4 at the resurfaced, and that had been Road Fernando San of metal buttons extended rows two of the accident time to 12 feet into the some 7 west curb from the out objection by Moreover, following wide. 56 feet was attorney by plaintiff’s question put a counsel to defendant’s into Fernando out San extended far the buttons how to as attorney’s that statement resurfaced, and the it was before answer that the “metal markers extended the witness street,” court ruled “I will completely across previously gone him i£ the buttons had you ask permit at time it was re-surfaced . . .” or had street, across the plaintiff’s not indicate that counsel Although the does record advantage ruling, apparent of the court’s it is thereafter took position complain, oppor a since is not in prove that a marked cross tunity provided her was thus authority formerly Plaintiff cites no and none existed. walk supporting although her claim that been discovered has actually not marked at the time the accident crosswalk during previous months, six she should and had not prove permitted to that marked crosswalk had have been ” ’’ city authority. by competent directed been authorized and ruling. perceive no error in the Unless the record we On actually is mere marked crosswalk marked the authorized been authorized cannot affect the duties fact that it has persons using the street. prejudicial contends that error
Finally, plaintiff give court’s refusal to the follow- her resulted case requested by plaintiff (Nos. number ing two instructions 102-A; paragraph (a) 16, see of Rule Rules for 201-E and Jury 7) from “California In- Courts, 33 Cal.2d Superior Civil”: structions, duty of both the driver of a
No. 201-E: “While it is using public roadway, pedestrian, and a motor vehicle require necessarily ordinary care, duty does not exercise of caution from each. The driver of a same amount2 alertly ordinarily will be con- vehicle, careful, motor when charge capable machine he is of a the fact that scious "degree” 2Originally No. 201-E used the word instead of instruction saying "degree inaccuracy that a different care” "amount.” The compared may pedestrian as with a driver of an automobile be exacted of the Scavenger pointed forcefully in Lasater v. Oakland Co. (1945), Cal.App.2d As stated court 486]. crossing there, truck was struck while street “The decedent Appellants proposed reason an instruction darkness. greater entirely ‘a in black she should have used that she was dressed fact degree safety. instruction her own The was erroneous of care’ for ‘degree’ ‘quantum’ degree using instead of or ‘amount.’ the word safety always same, required his own of a of care quantum ordinary care, although i.e., circumstances or amount some greater degree care is than to reach the ’ ’ others. by substituting word In 1950 instruction No. 201-E was amended place "degree.” Inasmuch as this trial took "amount” for the word requested 1952, plaintiff must considered to the instruction have subsequent the 1950 reads amendment. *5 any negligence consequences of his into projecting serious adequate responsi- that Thus caution must be to own. his surrounding circumstances. A bility as to all the related physical his hand, only has own pedestrian, on the other to in motion a cause body manage and with which set to capacity cause usually, fact limits his to injury. While, still, exercising driver, a vehicle injury, compared as alertly me- ordinary he, be conscious care, too, will roadway, may public acting, act, or that power chanical any consequences conflict serious possible, required caution forces. And the himself and such between injury apparent to possibilities himof is measured apparent to hand, that would him in the conditions at position.” ordinary same prudence a used amount of caution “Inasmuch as the No. 102-A: proportion in direct ordinary prudent person varies it follows undertaking, in his danger known to be involved of caution ordinary care the amount exercise nature the act vary with the required will in accordance put the matter surrounding To circumstances. and the in- required the law of caution way, amount another reasonably appre- should be danger creases as does hended.” as follows: court did instruct request, the
At defendants’ highway, using public a duty every person is the “It kind of vehicle, or the driver pedestrian a whether placing him- to avoid ordinary at all times care to exercise collision,” danger to avoid a and that self or others using operator of vehicle upon the imposes “The law duty, pedestrian, the same a public highway, causing ordinary to avoid an accident care to exercise each duty continues even might result. This injury from which ...” way over the other right of one has the when attempting to cross of a Concerning duties included the fol- request, court, at defendants’ street, the make, observations he should “What lowing instructions: crossing safety, while own for his he should do and what attempt regulate law does matters which street are respect: except in it does occasions, this for all in detail and ordinary care duty to exercise continuing him place upon roadway locality as While . . . avoid an accident right case, pedestrian has involved of consideration factors any point, these at cross the road required him conduct question what into the enter if he crosses at a ordinary care. First: in the exercise an un- crosswalk within a marked point other than within requires him to intersection, the law at an marked crosswalk so near yield way to all vehicles the amount immediate hazard. Second: constitute an as to increases as constitute of caution in like danger reasonably prudent person, that a does the *6 example, For in situation. apprehend position, poor visibility, heavy traffic, fast obstructions traffic, vehicular in- any perceivable or other factor view—any of these of amount eantion which creasing hazard, increases the person ordinarily prudent would use.” operator to the duties a Relating specifically instructed, among things, other motor the court vehicle in Vehicle Code effect at the time “Section ‘The of a motor provided as follows: driver the accident reasonably necessary operation to insure safe vehicle when warning with his horn. Such horn shall give audible shall be used.’ not otherwise prescribe the noted that the law does not will be
“It used, which horn specific under a shall be but circumstances warning reasonably provides shall be when neces- question sary safety. This means that the to insure whether or not the horn should have been sounded in this case is a light in question you decide of all fact the sur- judging rounding circumstances, the defendant’s conduct expected reasonably prudent might have been a what circumstances. person under similar upon speed highway, at which a vehicle travels a “The simply many in of so as an isolated fact and terms considered proof either of or of the exer- hour, miles an is not care. cise negligent question speed is a one is a
“Whether depends surrounding to which on all the fact, the answer circumstances. speed state, provided in basic law this Section “The Code, is as follows: 510 of the Vehicle “ upon highway drive a vehicle a at a person ‘No shall prudent, having greater than is reasonable due speed on, of, and the surface and width regard for the traffic speed endangers in no event at highway, ’ property. safety persons negligence. rule this basic “A violation the Vehicle Code the State instructed that “You are in full force and effect at the time of California, the acci- dent, provided as follows: “ speed highway 511. vehicle Section specified limits this section or excess established not clearly lawful proved this code is unless as authorized of the basic rule declared in to be in violation Section hereof. “ limits above are prima facie referred to as follows ‘The changed applicable unless as authorized the same shall be only signs changed, then have been code, if so when speed desig- giving thereof, notice which event the erected sign prima Twenty-five be the limit: shall facie nated per hour. miles ’ “ . business or residence district. . . ‘(1) In a ‘‘ just which is violation statutes Conduct you negligence per se. This means that constitutes read you supports finding, find, do that a if the evidence requires presumption that himself, so person did conduct presumption negligent. However, such or she was he showing may It be overcome other evidence conclusive. surrounding event, circumstances under all the justifiable such as excusable, question conduct of ordi- reasonably expected have been might ’’ *7 nary prudence. requested instruction A further defendants and having way, “the fact of of was that if such be the excuse one fact, exercise of ordinary not] [does causing an plaintiffs’ accident.” At to avoid request, peril given.3 imminent was also an instruction midway deliberations, in its jury, returned to the court- request that the instruction on with a peril room imminent thereupon again reread, and court group read “a be of jury again which” the were told instructions “should be con- peril reads as imminent instruction follows: 3The “A who, part, person suddenly without on his is and peril, arising pres- unexpectedly ence, with confronted from either the actual appearance, danger others, imminent of to himself or or the to required,'to judgment expected, prudence use nor the same and is not ordinary him, care, in the exercise of in calmer and duty only His is to moments. exercise more deliberate the care that person ordinarily prudent in would exercise same situation. If appears thing do, him he does what to to be the best at that moment to might action if his choice and manner of are the same as and followed have been ordinarily prudent by any person conditions, under the same him, although, requires light after-events, law he does all the appear that a different course would it should have been better and ’ ’ safer. ’’ including among peril others the imminent together, sidered duty every “It is the and the instruction that instruction pedestrian or the using highway, whether a public ordinary care at any vehicle, to exercise driver kind danger and to placing avoid himself or others all times to ordinary duty exercising avoid and that the a collision” right way one has the over the care “continues even when ’’ other. jury) given (but not re-read to the Another instruction crossing though pedestrian outside a cross- that even yield obliged right way walk to to vehicles and thus is thereby the vehicle driver is not relieved duty safety any “from the exercise due care roadway.” upon a jury “Ordinary care” was defined “that care persons prudence manage- ordinary which exercise in the injury in order to avoid ment their own affairs them- or selves to others.”
It should mentioned also that the court cautioned the any jury “If instructions, rule, these direction or varying ways, emphasis idea be no in- stated thereon is by you. by me, tended and none be inferred For must you single reason, certain sentence, are instruction, ignore others, individual but you are consider all and as whole, the instructions regard light of each in the all the others.”
Plaintiffs, support of their contention that instruction rely upon given, 201-E should have been No. Dawson (1937), Cal.App.2d 1002], Lalanne judgment in favor defendant was reversed on the sole ground failing error in to instruct that “the chargeable only the defendant were both greater care, but a amount of the exercise required of at the time of care was the defendant the acci driving question reason fact that he was dent automobile, instrumentality operating an which is an inflicting injuries capable serious and often fatal highway.” using the The court there declared that others *8 clearly applicable the rule of law instruction states “This approved and in a number to the facts the case has Rathjen (1917), cases,” follows: Weihe v. Mercantile as Co. v. ; Raymond (1914), P. 168 Cal.App. 34 302 Hill [167 287] ; Bireley (1928), v. 92 P. Vedder Cal. 483 [143 743] ; Taylor (1933), 128 Cal.App. 52 P. Pinello v. [267 724] 80
Cal.App. 508,
decision,
514
P.2d
Since
Dawson
[17
1039].
approved
have
numerous other cases
instructions
supra,
substantially
language (see
the same
v.
couched
Whicker
(1937),
Cal.App.2d 240,
20
244
P.2d
Auto Co.
Crescent
[66
(1938),
Cal.App.2d 613,
26
615
749]; Broun v. Blair
[80
Cal.App.2d 86,
34
;
(1939),
Martin v. Vierra
93
P.2d 95]
Greyhound
(1944),
261]; McNear v.
P.2d
Lines
[93
Pacific
;
Cal.App.2d 11, 18-19
P.2d
63
Kuist v. Curran
34]
[146
;
406-408
P.2d
(1953),
Cal.App.2d 404,
116
Geisler
[253
281]
Cal.App.2d 738,
;
Rugh (1937),
v.
19
742
P.2d
[66
671] cf.
(1930),
Cal.App. ,645,
108
646
v. Freeman
De Greek
[291
Angeles
Corp. (1930),
R.
105
854]; Morgan
P.
v. Los
& G.
152]),
approved
P.
and others have
Cal.App. 224, 231 [287
here offered
No. 201-E which was
the B.A.J.I. instruction
Angeles Ry. Corp. (1941),
v. Los
(see Schulman
924];
(1942),
v.
Cal.App.2d 122,128
44
P.2d
Reed Stroh
[111
829];
Cal.App.2d 183,
Schellberg
189
P.2d
O’Brien v.
159]).
(1943),
Cal.App.2d 764,
770 [140
intent of
apparent
It is
that the
approved
instructions
was to inform the
the cited cases
that the elements
constituting
qualifies
ordinary
of action
conduct
as
responsibility
with the
care
those commensurable
are
involved
instrumentality
the character
depend
being
being
nature of the act which is
performed,
used or the
all
surrounding
If
particular
circumstances.
as related to the
by plaintiffs (No.
requested
201-E)
here
had con
instruction
only
thereof,
sentence
which contains
the first
sisted
caution,”
perhaps
“amount
have been
expression
explanation, however,
the added
confusing
jury.
to a
With
meaning
quoted
of the
instruction,
ex
set forth
respective
duties
driver and of
pression
related
correctly
as a whole
states the law
instruction
pedestrian the
by varying
meant
that what
is
amounts
explains
entering
of conduct
into
is that the elements
caution
particular
vary
must be related to the
or caution will
including
the character
the act
involved,
circumstances
approved in
in the instruction
Both
Dawson
being performed.
Cal.App.2d 314,
and in the
(1937), supra,
Lalanne
v.
requested by plaintiffs
meaning
here
instruction
B.A.J.I.
to ex
conveyed
Another effort
same.
to be
intended
(1942), supra,
meaning
found
Reed
Stroh
press “They
instruc
as follows:
stated
Cal.App.2d 183,189,
[the
pedestrian exercise
both motorist
require tions]
the driver must be
ordinary care;
operating
conscious
*9
potential danger, and
immense and
that
engine capable of
an
of
fact that he is
the
be
pedestrian must
conscious
the
the
guard against
highway and
the
dangers
on the
midst
careful,
person.”
prudent
a
possibility
injury apparent
to
stated, and the circum-
above
Tested
the standards
correctly states the
No. 201-E
case,
instruction
stances
covered
specifically
not
subject matter was
and, as its
law
given.
Before de-
instructions,
should have
other
it
give
to
such instruction was
termining whether the failure
recall,
trial court also
to
that
prejudicial
proper
it is
requested
give plaintiffs’
to
refused,
mentioned,
as above
amount of caution
102-A,
states that the
No.
which
instruction
as
person increases
does
ordinary prudent
required of the
reasonably
apprehended. Although
danger
should be
the
refusing
that
request
give
102-A, the court at defendants’
No.
to
right to
pedestrian has a
cross
that
...
instructed
“While
requires
yield
him to
any
.
law
road at
. .
on
so near as to
way
to all
vehicles
. . .
amount
an immediate hazard
constitute
[and]
ordinary care increases as does
to constitute
caution
position,
in like
reasonably
person,
danger
prudent
apprehend
would
the situation.”
seeming emphasis
placed by
thus
view
some
of the
duties
it
pedestrian,
the instructions
is our view
might
plaintiffs’ requested
the court
well have
(which
apply
to
No. 102-A
its terms
as
drivers well
pedestrians) as well as No. 201-E.
emphasis,
as
Such
how-
something
appear-
most
matter and is
ever, is at
a relative
always
avoided;
ance of
cannot
not from
comes
necessarily
any
singling
of the law but from
misstatement
accurately
fully
order
state
the law
any pedestrian
applicable to
under circumstances and in
situations described
the evidence. Other instructions which
“emphasize”
operator
the duties
of a
in a like sense
given.
are designed
motor vehicle were
Such instructions
obligations
give
prominence
oper-
unfair
of the
fully
fairly
of motor
but to
state the law
ator
vehicle
operator
applicable
vehicle
circumstances and
described in the
fault in this case
situations
evidence.
rule of law
is not one of affirmative misstatement
but
fully
in the
explain
application
more
failure
correctly
general
declared,
jury,
rules
law which were
using
sense,
common
law,
factually
as
as
a matter
well
as
general
recognize
should
good judgment
knowledge,
moving
greater
heavy,
inertia of a
vehicle is
the force
fast
comparatively light
moving pedestrian
than that
and slow
harm
respectively
potentialities
ensuing
and that
responsibilities vary accordingly.
devolving
case,
The close point in this
if there
one, appears
us
depend
interpretation
plaintiff’s
own conduct
testimony.
established
her
If such conduct can be
with the
of ordinary
reconciled
standards
imposed
on a
pedestrian crossing roadway
place
at a
other than
inter-
*10
or
section marked crosswalk it would
theory
seem to be on the
peril.
pointed
sudden confrontation with imminent
As
above,
peril
instruction on imminent
was twice read to
jury.
also,
fairly
So
were instructed
as to the
meaning
“any
care and were
if
cautioned that
rule,
or
in varying
direction
idea” had been
no
ways,
stated
by
thereon
emphasis
intended,
was
“none
be
must
inferred
“you
you,”
are
consider all
the instructions and as
whole,
regard
light
and to
each
of all the others.”
judgment
The rule is that “No
shall be set aside
...
ground of
misdirection
the jury, or of the improper
rejection
admission or
. .
evidence
. unless, after an exam
cause, including
ination of the entire
the evidence, the court
opinion
shall be of the
complained
that the error
of has re
justice.”4
in a miscarriage
(Cal.
sulted
Const.,
VT,
art.
Loper v.
see, also,
(1944),
Morrison
Edmonds, CARTER, J. I dissent. opinion prejudicial
I am
that it was
error to admit
“average speed”
evidence of the
traveled
vehicles in the
testimony
in view of the
showing
area of
accident
that the
question
posted
speed
area
25-mile-an-hour
limit
signs.
It has been
times
held numerous
court and
question
this state that the
by appellate courts
negligence,
negligence,
not to
or lack
be determined
what others
place
did
do at
time
particular
under the
did
confronting
and circumstances then and there
facts
them,
including
important
undisputed
factor
here
there
in the
was a
street.
Rudd
Byrnes, 156 Cal.
957,
124,
P.
20 Ann.Cas.
134],
L.R.A.N.S.
persons
that “The standard
it was held
circumstances is not to be
proof
under
established
*11
acting
been in the
of
have
habit
in a
that others
certain
Phoenix
Holding
In
Assur. Co. v. Texas
81
Co.,
manner.”
61,
1082],
P.
it was
Cal.App.
74-75
held “That a mere
[252
usage
make due care
of
cannot
custom
conduct that
negligence
the
fact
under
circumstances disclosed
is in
the
of
a number
been stated
times
the courts
evidence has
specificpractice
as of other states.
. . .
of this
as well
state,
testimony
be admitted
as an excuse for
of others cannot
’’
negligent
alleged
act of the defendant. And Robinet
274
it was held
Hawks,
265,
1045],
200 Cal.
P.
[252
v.
customary usage
not,
of
does
our
knowl
“.
. .
doctrine
duty
question
legal
of
under the
of
apply to
law
edge,
Angelus Hospital
172
Perry
Assn.,
v.
Cal:
In
negligence.
say:
authority
of
449],
‘We know no
Pac.
we
311, 315 [156
perform
by continuing in a careless
proposition
for the
negligence into
its
due care.
duty
party
of
a
transforms
ance
”
In
Iverson,
not excuse the failure of these A somewhat similar rejected in Hughes contention was the case of v. Warman Casting Co., Steel 174 In 556, Cal. 561 Pac. Robinet [163 885]. Hawks, 265, 1045], v. 200 Cal. 274 said Pac. court [252 customary usage apply of that the doctrine does question of legal duty negligence, under the law of or that performance duty of a continuance careless a party’s negligence into In People transform due care.” v. “ 16 Crossan, Cal.App. 5, 531], 87 P. it held that [261
‘The standard under persons by proof circumstances is not to established that others ’ ” acting have been in in a See, the habit certain manner. also, 475, Wheeler, Cal.App. sen v. 130 482-484 P.2d [19 Wolf Cal.App. 161, v. 1004]; Co., Carroll Central 96 Counties Gas 875], P. 165-166 [273 Key System v. Lines, Fowler Transit 37 65, Cal.2d 68 [230 339], upon majority relied this court support
the determination that evidence properly custom was ad bar, entirely mitted the ease at involved an different situa citing tion. There, court, v. Adamson San Francisco, Cal.App. 875], P. said: “Where ... [225 a usual claim, practice or obtained, custom has and . . the . is made parties that one has, to the other, discomfiture of departed without notice, the usual custom practice, from [emphasis the courts have an unbroken line added] question decisions held that the part defendant, question contributory and the negligence on plaintiff, questions the part are both for the jury to light determine of all of facts, including the evidence alleged tending establish the deviation In therefrom.” alleged case, the Fowler it had been passenger that the had injured from a stepping while bus stopped which had not customary stopping place. at its Ross San Francisco- Co., Oakland Cal.App. T. R. 703], P. relied on in case, practice the Fowler court said: “The settled particular at a stopping place street-car rule becomes a public rely conduct which the has a to a extent, departure vitally reasonable and a from such rule determining important question negligence, element safety departure constitutes standard *12 ’ ’ adopted. majority which the defendant itself has The here rely Cheney Cal.App.2d 64 Bros., Muir v. 55 P.2d [148 in the 138], as it was cited Fowler case. The Muir case also from involved a deviation the normal method of travel on a
85 descrip- “difficult of highway which was portion of certain in the method which offered show was tion.” evidence in the on an intersection negotiated a turn vehicles most full the the show offered to shape of an arc. It was question. in surrounding accident the of circumstances set ease, in Muir restated rule stated support In none cited by majority here, several are but cases point. example, For in v. Rucker them is Hatzakorzian 1027], a 82 41 Co., Cal. P. A.L.R Fuller Desk 197 [239 employee an was struck an automobile driven alleged that the deceased the defendant. The defendant negligence. through contributory No his death his own met Testimony made regarding statements custom was involved. prior held admissible so deceased to his death were fully “that his mind and to disclose the deceased had in just walking along highway or over the realized, as he was walking perils dangers over he was struck, before highway night, and further tended the darkness exercising due care that, engaged, while thus he was show safety.” is that of v. for his own Another case Dewees 733], 620 where no evidence Kuntz, Cal.App. 130 P.2d [20 there, explaining was The court involved. custom general governing used rules to be the driver summarized, by saying: “In part, some automobile may justify a that he had actual cases the evidence conclusion knowledge danger may collision; others it circumstances that the defendant concluded the attendant degree. appears If it peril, advised but a less was precautionary omitted to measure that the defendant take imputation prescribed by usage, law or is that which was knowledge danger.” have had Mace he must 893], court, Watanabe, Cal.App.2d the trial [87 testify permitted a officer to that it was objection, over traffic general of motorists to travel the road custom and habit “Y” the soft way along leg each of the rather than use gravel forming “V” of an This was offered intersection. “Y” a well-traveled leg to show that each constituted “V” road did not constitute and that the error in the ad way. It was said that there was no there testimony evidence not like since “This mission of such (2d) Cohn, Inc., v. Albert Cal. that offered Hurt el pedestrians to violate (2d) 922], Pac. to show habit . The evi protection. . . signals maintained their traffic maintained county had constructed and dence .showed that the *13 86 separate approaches,
these two the further evidence that they commonly by all were used as such motor traffic was respondents’ material case.” v. 59 Cal. Gallot, Scott App.2d 421, 685], 426 P.2d it was held that evidence [138 safety custom which was' a measure was admissible because not evidence of custom which was negligent. was negligence—that of the evidence of custom
Here showed exceeding posted speed limit the area and that evidence only could have been considered excuse negligence part the defendant. usage law mere custom or is well settled that cannot that is fact under
make due care conduct (Phoenix circumstances the evidence disclosed Co. Assur. Holding supra, Cal.App. 61; v. Co., Byrnes, Texas 81 Rudd v. supra, 636; 156 v. 203 Co., Cal. Anstead Gas & Elec. Pacific ; Perry Angelus P. Hospital Cal. 634 v. 172 Assn., [265 487] Hawks, P. v. 200 Cal. 449]; supra, Cal. 311 Robinet [156 265; Co., Cal.App. 96 Carroll v. Central Gas supra, Counties 161; 855]; Mehollin v. 11 53 Ysuchiyama, Cal.2d ; Virtue, supra, Crossan, Sheward v. v. People Cal.2d 410] supra, Cal.App. 5; Wheeler, v. 130 Cal. supra, senWolf App. 475; N.Y. Moreau, App.Div. 915 [292 Sanford 271). Supp. 595]; 61 C.J.S.
Plaintiffs’ offer of proof wife knew crossing custom of San Fernando Road at accident was refused the trial court. The offer of proof consisted of “If this this: witness were answer, allowed to testify crossing she will that she had been in this same cross walk employed area since she first became there 1945, and when work she first came to there painted were white lines pavement across of San Road; Fernando that there have always been these metal- There always have been metal strips road; across the that she, company even in many employees other patrons of the Riverview Laundry had there; had crossed that she seen many, many persons cross particular right up area to the time of the accident, I say, she herself as has crossed there to take the street ’’ car, doing morning. she was While proof the offer of inartistieally phrased, somewhat meaning is clear. sought prove Plaintiffs particular that the crossing space formerly had been a marked crosswalk and since San Fernando Road had been resurfaced and the lines white obliterated, it had reason of custom an unmarked become We find in the crosswalk. record that one of defendants” if a negative manner that jury in told instructions marked than within a point other at a crosses pedestrian intersection, at an crosswalk an unmarked within crosswalk way. right of af yield the Stated him to requires the law yield right requires a motorist law firmatively, the crossing a marked or unmarked within pedestrian way to a ‘ provides:1 The of the Vehicle Code 560(a) crosswalk. Section way to a yield of a vehicle shall driver or within any marked crosswalk crossing within except intersection, as other at an crosswalk unmarked *14 been ad chapter.” Had the evidence in this provided wise properly since instructed jury would have mitted, the language of given substantially in the as was the instruction evidence, instruction mean the the was Without the section. that would have shown pointless. The evidence ingless and question was an unmarked crosswalk in the custom way. right of evidence wife the Such giving plaintiff plaintiffs’ ex material to case. Its only admissible but clearly prejudicial. clusion was give plaintiffs’ failure to opinion that the
I am also of the prejudicial error. It is admitted 201-E constituted instruction requested correctly majority instruction opinion that subject law; that its matter was not covered states the given. it should have been instructions and that other pointed trial majority opinion, it is then out that give plaintiffs’ instruction No. 102-A. also failed to court jury have told that “While it is the No. 201-E would duty pedestrian, the driver of a motor vehicle a both ordinary care, duty using public roadway, to exercise a necessarily require the same amount caution from does not vehicle, ordinarily of a when driver motor care- each. The alertly charge conscious the fact that he is in ful, bewill consequences into capable projecting serious of a machine adequate Thus caution must his own. his surrounding all responsibility as related to cir- to that hand, only on pedestrian, A the other has his cumstances. body manage to to and with which set motion physical own injury. While, usually, capac- that fact limits his cause of a still, compared a ity driver, as vehicle injury, to cause too, alertly exercising ordinary care, will be conscious he, may act, public power acting, mechanical consequences possible serious roadway, forces. And the caution himself and such conflict between possibilities injury of him is measured required apparent Mm in hand, the conditions at or that would be apparent ordinary prudence posi- same tion.” No. 102-A Plaintiffs’ instruction would have told the "Inasmuch as the amount caution used ordinary prudent person proportion varies direct danger undertaking, known be involved his it follows exercise of that in the care the amount of caution required vary in will accordance with the nature of the act surrounding put circumstances. To the matter in way, reqmred by of caution another the amount law increases danger reasonably apprehended.” as does the should be majority opinion cases are Numerous cited in to the effect 201-E is a that instruction correct statement of No. the law. only For best to a peculiar reason, majority some known instruction court, pe- defendant’s that "While ... right any point destrian has cross road at . . . the requires yield way him law to all vehicles so near as to constitute an immediate hazard . . the amount of . caution constitute ordi- [and] danger reasonably nary increases as does the that a prudent apprehend person, position, like in the quoted. then admitted that there situation” is It is has been bn "seeming” emphasis placed the duties might and that "it is our view” that the court well have requested 102-A "as plaintiffs’ No. well No. 201-E.” "seeming” these error and despite But admissions favorit- *15 prejudice ism concluded that no defense, to the it is enough plaintiffs. least, at not error to Or, suffered con- of miscarriage justice because a different stitute verdict say I improbable.” "would have been that different ver- probable have been had these errors dict would most occurred. give plaintiffs’ In to failing requested two instructions and giving requested
in those defendant, the trial court weighted scales in of the favor the defendant placing a pedestrian of greater care on a burden that than which the and imposes law relieved the motorist responsibility of the imposed which on him. has been We are told in majority opinion, "Although, mentioned, as some of the instruc- quoted appear emphasize tions hereinabove the duties a of essays pedestrian thoroughfare who to cross a point at a other crosswalk, emphasis than an intersection marked is at something matter appearance most a relative and always which cannot avoided. emphasis comes not any necessarily law singling misstatement but from accurately pedestrian fully in order state any applicable under law circumstances and in evidence(Emphasis added.) situations described necessity singling pedestrian. There was no out the Had requested given, plaintiffs’ instructions been a fair trial would likely. given (and been more Had the instructions been have concededly correctly they must be remembered that stated it given) the the law and should have been other errors com- nearly pernicious. not have been so Under plained would case, may readily that, first, the facts be seen admitting evading of a custom of evidence so-called the law exceeding (with speed practice plaintiff limit which supposedly familiar) jury were, effect, wife was told plaintiff pretty stupid crossing par- wife was at that going all were too ticular where cars fast. give instructions, compounded
refusal to her confusion was duty by placing greater her, of care on as a pedestrian, driving capable than the one a mechanical contrivance inflicting great bodily injury. errors, These two added to plaintiffs’ refusal evidence of to admit a custom all (which pedestrians to cross at an crosswalk unmarked had previously be, marked crosswalk and which was to again, crosswalk) a marked have had could but one result: impressing upon wife had a duty for her own crossing tremendous highway upon speed which cars were known to exceed the failing things and that to take all limit these into con- guilty contributory negligence sideration she was which injuries. proximately caused her We are told that instruc- emphasize operator tions “seemed” to the duties give of a motor vehicle were “not to prominence unfair obligations operator of a motor vehicle but fully fairly applicable state law oper- vehicle ator the circumstances and situations described in the evi- The fault in this case dence. is not one of affirmative mis- statement rule law but explain more of failure fully application general that in the rules law which correctly declared, jury, were as a matter law, as well factually using m common sense, good judgment gen- *16 knowledge, recognize eral should that inertia force moving heavy, greater vehicle is than that a com- fast paratively light moving pedestrian and slow a/nd respectively ensuing potentialities harm devolving and re- vary (Emphasis accordingly.” added.) Error
sponsibilities should have admitted; given; the instructions been so jury that the prejudice resulted. It is elemental determines proper the facts and renders its verdict under the principles laymen composed body, law. How is untrained and law, to make a correct determination come to the fully not been fairly conclusion when it has and instructed as majority proper principles court, law? The cry signatures appear there, be the whose first jury allowed, horror that a must not be unaided instruc- law, op- to decide which of two applicable tions on the one guilty contributory of either posing parties was juries fact, normally, are considered so un- negligence. majority of in their factual determinations that a reliable august itself for those bodies this court would substitute upon minute factual determination itself. take even most (and here, jury permitted to make a determination Yet determination) majority of this court affirms that unaided in this case proper instructions. The result achieved brings saying ought that “there home the truth pedestrians”! season on us a closed majority opinion in the The 'discussion as to the nonprej- udicial character the errors committed the trial court meaningless. in this case is Some errors are conceded. The prejudicial purely character error is a matter of majority opinion. While the does not hold that it was error as to speed admit evidence custom of automobiles place where the at the accident occurred exclude the testi- mony by plaintiff offered relative to the custom pedestrians it to cross the street at is conceded that the erroneously respective instructed relative to the duties and responsibilities pedestrians operators motor vehicles. my From examination the record this case I do not be- fairly honestly lieve it can be said that if the errors in question been had not committed different result would have improbable. highly the other I think hand, On im- probable that the same result would be obtained a new free from errors here For I trial shown. this reason prejudicial, I would believe the errors were therefore judgment reverse the and direct that a new trial be had.