8 P.2d 552 | Cal. Ct. App. | 1932
Defendant appeals from a judgment awarding damages for personal injuries resulting from a collision about 4 o'clock P.M. on April 12, 1929, between the motor-truck of appellant and a motorcycle ridden by respondent. Prior to the collision respondent was proceeding north on San Pedro Street in the city of Los Angeles and appellant's truck was going in a westerly direction on East Ninth Street and toward the intersection of that street with San Pedro Street. While there was no proof that they were there placed in compliance with any ordinance, the record discloses that on San Pedro Street and at a point 32 feet south from the southeast corner of the intersection and also on East Ninth Street at a point 74 feet east of the intersection there were located mechanical traffic signals changing from "Go" to "Stop" and so on. Traffic buttons, four in number, were placed at approximately the intersection of the center lines of each of the streets by a prolongation of the property lines at right angles thereto. It was stipulated that the location was a business district. Respondent, riding on his motorcycle in a northerly direction, was about 80 feet south of the intersection where the button was located when the signal changed to "Go", and entered the intersection at a speed of about 10 miles an hour, riding just east of the center line of San Pedro Street with three lines of traffic to his right and these lines of traffic moved with him about seven feet and when he arrived at the traffic button, appellant's truck was seven feet ahead of him and immediately thereafter the collision occurred. It also appears that appellant's truck was about 100 feet east of the signal on East Ninth Street near the northeast corner of the intersection when the first bell rang and the signal there changed from "Go" to "Stop", and that the second bell rang before the truck entered San Pedro Street and that the San Pedro Street signals did not change from "Stop" to "Go" until after the first or at the time of the second bell. The truck made a left-hand turn after it entered the intersection and according to some of the testimony was traveling at the rate of about 20 miles per hour up to the time of the collision. As is natural in cases of this character, there are differences and conflicts between the various witnesses as to speed, distance and locations, and it was for the jury to *470 determine the facts. [1] There is evidence in the record to warrant the conclusion that, after the ringing of both bells and the Ninth Street signal which the truck was approaching having turned to "Stop" and the signal ahead of the motorcycle and other traffic on San Pedro Street having turned to "Go", the motorcycle and the automobiles to its right entered the intersection, and that thereafter the truck entered the intersection coming from the east, made its left turn and had nearly completed it when the collision occurred. Not only the testimony as to the speed of the truck but the far greater distance traveled by the truck as compared to the distance covered during the same period by the north-bound traffic, bearing in mind the evidence that the latter traffic entered the intersection before the truck, fully warrants the conclusion that the truck while in the intersection was exceeding the speed limit of 15 miles per hour. The record also warrants the conclusion that the motorcycle and the cars to its right were traveling at a rate less than 15 miles per hour while in the intersection.
[2] Appellant's contentions that respondent entered the intersection before the traffic signal changed to "Go" and at a rate of speed greater than that prescribed by the statute, and that appellant's truck had the right of way, cannot be urged here as those questions of fact were determined adversely to his contention and the findings by the verdict are supported by evidence in the record. Neither can we agree that the rate of speed of 10 miles per hour was unreasonable and negligent. This point, in support of the claim that the record shows contributory negligence as a matter of law, is predicated on the theory that respondent was proceeding across the intersection "when his view was obstructed as to westbound vehicular traffic in the intersection". While there may be other interpretations based on conflicting testimony, the evidence seems to indicate that the course or route pursued by the truck in making its turn was along a curve from the most easterly traffic button toward the most southerly button. While appellant's brief gives a reference to the transcript as sustaining his contention that respondent's view of the traffic on East Ninth Street was obscured by the automobiles traveling on his immediate right, the transcript shows that the respondent, at the time the signal ahead of him changed to "Go", *471
looked to the east and west to observe whether there was any traffic and at that time the intersection was clear of all traffic, that the closest machine to his right at the time respondent crossed the property line was "almost opposite me", and that, while respondent could not see the truck before he came up to the property line because until he arrived there the other machines were ahead of him, he did see the truck which was then seven feet in front of him when his motorcycle arrived at the property line, and according to appellant "the collision took place approximately ten feet south of the southerly street, (curb) line of East Ninth street extended across San Pedro street". Appellant's principal point is that respondent was guilty of contributory negligence as a matter of law. While our Supreme Court has held in Rush v. Lagomarsino,
[3] While this court cannot take judicial notice of any ordinance governing either the traffic signals or an intersection so equipped or even that such signals were there established by an ordinance, it does not follow that the evidence as to the ringing of a first and second bell and the display of "Stop" and "Go" signals cannot be considered in connection with the questions of negligence and contributory negligence. The fact is that there were at the intersection signals which changed at intervals so that those facing north and south read "Go" while those facing east and west read "Stop" and that a bell rang when a signal turned to "Stop" and that a second bell rang when the opposite signals turned to "Go". The presence of such signals, known as it was to respondent, would naturally lead him to the conclusion as a reasonable man, that, when the signal ahead of him read "Go" at the ringing of the second bell, it was safe to proceed and the signals on the intersecting street having turned to "Stop" at the first bell, it was also reasonable for him to believe that its warning would be heeded by the drivers of vehicles approaching such stop signal, particularly where, as here, after the signal had changed to "Go" he looked to the east and west to see if any traffic was coming and saw that the intersection was clear of all traffic. Under these circumstances there was nothing to indicate to him that appellant's truck would or might ignore the "Stop" signal and inject itself into the intersection. In effect, appellant is urging that, since thereafter one or more of the cars on *473 respondent's right obstructed his view so that he did not see the truck until it loomed up in front of him, he was guilty of contributory negligence because he did not stop or slow down. As he was traveling at less than the speed limit of the intersection and was justified in believing that the east and west traffic had stopped, and as there is nothing to indicate that there was any slackening of the speed of the vehicles on his right such as would indicate any possible object ahead of them, there was nothing to even suggest to him there was any occasion for reducing his speed. Surely, pursuing his course over a highway clear of traffic when he observed it a second before, the driver of the motorcycle was not guilty of a failure to use ordinary care in acting on the assumption that the drivers of vehicles approaching the intersection from the east on Ninth Street would exercise due care for their own safety and would not, in the face of a "Stop" signal and after the traffic had started north on San Pedro Street, drive virtually head-on toward such traffic.
The principles here involved are not without precedent. In the case of Sites v. Howrey,
In the recent case of Page v. Mazzei,
[4] The evidence in the case at bar is such that, even viewing it most favorably to appellant, different conclusions can rationally be drawn as to whether the respondent was guilty of contributory negligence or whether his conduct was that of the ordinarily prudent and cautious individual. The jury has decided this question of fact adversely to appellant and their conclusion is final. It follows that there was no error in the refusal of the trial court to instruct the jury to return a verdict for the defendant.
The final point of appellant is that the court erred in including in one of its instructions defining contributory *476 negligence the words that "like negligence, it must proximately cause injury before it can bar a right to recovery". Appellant declares that this instruction indirectly states that, even if plaintiff was guilty of negligence not a proximate cause of the injury, such negligence would not bar his right to damages and contends that this is not the law. [5] He also complains that the court did not instruct the jury upon the law relating to proximate cause. The answer to the latter point is that, if appellant desired a further definition of this term or a more extended statement of the law he should have requested such instructions and in the absence of such a request he cannot complain, especially since the word "proximately" is used in at least eight of the instructions on contributory negligence given to the jury at his request.
[6] Appellant argues that it is not the law that, before it can bar a recovery, contributory negligence must be the proximate cause of the injury. We concede this, but it must be noted that the instruction before us merely declares that contributory negligence must proximately cause the injury to constitute a defense. There is a distinction between a statement that the contributory negligence was the proximate cause of an injury and a statement that it proximately caused the injury; in the first instance the language implies that the negligence was the sole cause while the latter merely implies that the negligence was such that, unbroken by any new and independent cause, it produced or contributed to the injury and without which the injury would not have been suffered. In other words negligence cannot be contributory without also being proximate. In Straten
v. Spencer,
The judgment is affirmed.
Works, P.J., and Craig, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on March 4, 1932, and an application by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on April 4, 1932.