Fry v. YoungFry v. Young
- Reporters:
- , ,
- Before:
- Regan
In an unpublished opinion, this court affirmed the order of the trial court granting all defendants a new trial. Shortly thereafter,-the code provisions (Code Civ. Proc., *343 §§657, 660) governing the timeliness and contents of new trial orders were reviewed by the State Supreme Court in a trilogy of cases—Siegal v. Superior Court, 68 Cal.2d 97 [65 Cal.Rptr. 311, 436 P.2d 311]; Mercer v. Perez, 68 Cal.2d 104 [65 Cal.Rptr. 315, 436 P.2d 315], and Treber v. Superior Court, 68 Cal.2d 128 [65 Cal.Rptr. 330, 436 P.2d 330], By direction of the Supreme Court, the appeal is here again for reconsideration in light of those three cases.
Plaintiff sued for personal injuries suffered when an automobile owned by defendant Hurt and driven by defendant Young rear-ended a pickup truck which defendant Olds was alleged to have negligently parked on a rural road. At the time of the accident, plaintiff was standing in the highway conversing with Olds, who was seated on the driver’s side of the pickup.
The chronology of the litigation is significant:
On October 13, 1965, judgment was entered for plaintiff on a jury verdict against all defendants. The clerk’s written notice of entry of the judgment was served by October 15, 1965. Relying individually or jointly on all statutory grounds ’(
On December 7, 1965—after plaintiff had taken his appeal, but
within 60 days after service of notice of entry of judgment
(
After directing the nunc pro tunc inclusion of insufficiency of the evidence as an omitted ground, the December 7 order next gave detailed reasons why the trial court deemed the evidence to be insufficient. The same order also specified the particular instructions which the court thought to have been erroneous.
Plaintiff did not file a new notice of appeal after the court’s December 7 order. It was unnecessary that he do so to have both orders reviewed. (See Halpern v. Superior Court, 190 Cal. 384, 388 [212 P. 916].) After December 7, all defendants cross-appealed from the judgment, and defendants Young and Hurt cross-appealed from the order denying their motion for judgment notwithstanding the verdict.
The efficacy of the trial court’s orders of November 1 and December 7 is governed by
In
Siegal
v.
Superior Court, supra,
68 Cal.2d 97, a
nunc pro tunc
order purporting to grant a new trial
after the 60-day period prescribed by
In addition to the other amendments to
. . .” In
Treber
v.
Superior Court, supra,
68 Cal.2d 128,
Under the 1965 amendment, both
Mercer
(68 Cal.2d at p. 121) and
Treber
(68 Cal.2d at pp. 134-135) bar
nunc pro tunc
specifications of
reasons
made more than 10 days after the motion is granted. In the instant case, to rectify a clerical oversight, insufficiency of the evidence was added as a
ground
by a
nunc pro tunc
order which was itself made
within the 60-day period during which
The
Siegal
(68 Cal.2d at pp. 102-103) and
Mercer
(68 Cal.2d at p. 121) opinions cite many precedents for the concept that, under the 1939 amendment of
Decisions under the 1939 amendment had consistently .taken the position that its express 10-day limitation abrogated the power the trial court
would otherwise have
to use a
nunc pro tunc
order to specify insufficiency of the evidence where there had been a clerical failure to list that ground. (See, e.g.,
Malkasian
v.
Irwin,
61 Cal.2d 738, 744-745 [40 Cal.Rptr. 78, 294 P.2d 822] ;
Roth
v.
Marston,
110 Cal.App.2d 249 [242 P.2d 375], and cases cited.) Inasmuch as the 1960 amendment deleted that 10-day limitation, it is possible to view the 1965 change as reinstating the trial court’s pre-1939 authority to make
nunc pro tunc
specifications of the ground of insufficiency of the evidence (e.g.,
Lauchere
v.
Lambert,
210 Cal. 274 [291 P. 412];
Kraft
v.
Lampton,
13 Cal.App.2d 596 [57 P.2d 171];
Livesay
v.
Deibert,
3 Cal.App.2d 140 [39 P.2d 466]). However, other considerations compel a rejection of such course. Its adoption would frustrate-the 1965 Legislature’s intent to require that full judicial deliberation on motions for new trial be practically concurrent with judicial disposition of such motions. (See
Mercer
v.
Perez, supra,
68 Cal.2d at p. 113.) It would compel an unsuccessful opponent of the granting of the motion to safeguard his time to appeal (Code Civ.
*347
Proc., § 963;
We therefore hold that, despite the fact that the 1965 Legislature removed from
Thus, in the instant case, the December 7 order did not give either a timely statement of insufficiency of the evidence as a ground or a timely specification of the reasons why that ground applied. Nor did it contain a timely recital of the instructions which the trial judge thought erroneous. The court’s power in those three regards—whether by original or
nunc pro tunc
order—had expired November 12, 1965. (
Since the November 1 order was in terms based on only one ground—error in law—and not on insufficiency of the evidence, and since all specifications of reason were tardy, appellate review of the sufficiency of the evidence is barred and the trial court’s order cannot be sustained on that evidentiary ground. The only errors in law asserted by defendants in their motions and on this appeal pertain to instructions they claim (and the trial judge in part, but belatedly, specified) to be erroneous. Consequently, our further review will be confined to those instructions.
‘ ‘ Roadway ’ ’ and ‘ ‘Pedestrian’’ Instructions
Substantial evidence showed that plaintiff, who had left his *348 own vehicle parked on the southbound side of Zumwalt Road while he was inspecting an alfalfa field on foot, walked out of the field and stood in the southbound lane talking with Olds. At that time, Olds was sitting in the driver’s seat of his pickup, which was parked squarely in the northbound lane close to the center line. After five minutes Olds pulled over to his right and reparked facing northerly at an angle with the road. Olds’ left rear tire was then on a paved 3-foot-wide shoulder. The evidence conflicted as to whether, in this position, the left rear end of the pickup partially projected into the 10%-foot-wide northbound lane or was completely clear of it. Olds remained in the pickup. Plaintiff followed him over on foot and stood on the driver’s side of the pickup while they continued the conversation for another 10 minutes before the accident. During the entire interval, plaintiff was standing either out in the northbound lane or on the adjacent shoulder. Upon seeing Young approaching from the south, plaintiff only had time to shout a warning to Olds and to run a few steps toward the front of the pickup before being struck.
The court instructed the jury that “no pedestrian shall walk upon any
roadway
outside of a business or residence district otherwise than close to his left-hand edge of the
roadway”
(
Vehicle Code section 530 provides that “a ‘roadway’ is that portion of a highway improved, designed, or ordinarily used for vehicular travel.” The trial court, on its own motion, deleted the “improved” and “designed” language and instructed the jury only that “a roadway is that part of a highway which is ordinarily used for vehicular traffic.” More specifically, the court also instructed the jury that “that portion of Zumwalt Road referred to in the testimony of this case as the ‘ improved shoulder ’ is not a part of the roadway *349 within the definition of the term ‘roadway’ as used in these instructions.” These deletions, removing the shoulder from the jury’s consideration as part of the roadway, were specified in the trial court’s December 7 order as having been errors in law.
The trial judge correctly determined that he had erred in thus defining “roadway.” The court‘s deletion of the “improved” and “designed” language was error because there was some evidence that the Zumwalt Road shoulder was “improved” or “designed” for the purpose of facilitating vehicular travel. That evidence, though slight, was to the effect that the 10%-foot lane and the 3-foot shoulder were both paved to grade even though the lane had a sealer coat on it and the shoulder did not. Similarly, there was evidence that the shoulder was “ordinarily used for vehicular travel” (Yeh. Code, § 530); this consisted of plaintiff’s testimony that he had seen cars (but “not too many of them”) “all over the road all the way up to the edge where the pavement stopped.” The issue of whether the shoulder was part of the “roadway” was one of fact and should have been left to the jury. (See Wilson v. Foley, 149 Cal.App.2d 726, 733-734 [309 P.2d 97].)
Apart from the court’s erroneous definition of “roadway.” Olds contends there was no evidence plaintiff was a “pedestrian” and that the court therefore erred in giving the above-quoted instruction on the duty of a pedestrian on a roadway (
Plaintiff was clearly a pedestrian, and the prohibition of
*350
Vehicle Code
In support of a contrary conclusion, Olds relies upon Armstrong v. Sengo, 17 Cal.App.2d 300 [61 P.2d 1188], where a motorist ran down a squad of national guardsmen while they were standing at attention upon a paved roadway. That case is readily distinguishable. Unlike plaintiff, the solders in the Armstrong case were upon the roadway in compliance with their duty to obey the commands of their superior officer except when such orders were palpably illegal. (See Curnutt v. Holk, 230 Cal.App.2d 580 [41 Cal.Rptr. 174].) Beyond that, in holding that their officer’s command for them to stand on the pavement was lawful, Armstrong reflected the court’s conclusion that the statutory predecessor of section 21956 was not intended to apply to troop units. (17 Cal.App.2d at pp. 305-308.) A similar result was reached in Zumwalt v. E. H. Tryon, Inc., 126 Cal.App. 583 [14 P.2d 912], where the earlier code section was held inapplicable to a sheepherder whose duties required him to work in the roadway.
“Last Clear Chance” Instruction
The trial court gave the standard instruction on last clear chance (BAJI No 205 Revised). All defendants urge this as error. It was not specified as such by the trial judge.
In Gillingham v. Greyhound Corp., 263 Cal.App.2d 564 [69 Cal.Rptr. 728], this court has recently reviewed the rules governing application of the last clear chance doctrine; It may be invoked “only when: (1) The plaintiff by his own negligence has put himself in a helpless position. ... (2). The defendant knew that plaintiff was in a position of helpless peril; (3) The defendant thereafter had-a last clear chance to avoid the accident—not a mere possible chance.” (Id., at p. 569.) In regard to the second element, “it must be remembered that . . . ‘actual knowledge of plaintiff’s position of danger is required, but constructive knowledge of his inability to escape will suffice. ’ ” ‘(Id. at p. 571.) A jury is not required to accept a defendant’s denial that he actually knew plaintiff was in a position of danger; *351 from proper circumstantial evidence, the jury may find that defendant had such actual knowledge, and from this actual knowledge the jury may further infer that defendant should have known that plaintiff could not escape. (Id. at p. 570; see Espinoza v. Rossini, 247 Cal.App.2d 40, 52-55 [55 Cal.Rptr. 205]; Gulley v. Warren, 174 Cal.App.2d 470, 476-478 [345 P.2d 17].)
An instruction on last clear chance should be given where there is any substantial evidence which, viewed most favorably to its application, would reasonably support the doctrine. (Gillingham v. Greyhound Corp., supra, 263 Cal.App.2d at pp. 566-567; Espinoza v. Rossini, supra, 247 Cal.App.2d at p. 52.) However, unless such evidence supports each one of the above elements, an instruction on the doctrine is improper. (Hickambottom v. Cooper Transp. Co., 163 Cal. App.2d 489, 491-492 [329 P.2d 609] ; see Duenas v. Domingo, 219 Cal.App.2d 645 [33 Cal.Rptr. 320] ; Di Sandro v. Griffith, 188 Cal.App.2d 428, 431-432 [10 Cal.Rptr. 595].)
On appeal, plaintiff makes no attempt to argue that the instruction was proper as to Olds. Nor could he, based on the undisputed evidence, make such a showing. Even assuming that Olds could be charged with constructive knowledge of plaintiff’s inability to escape, there was no evidence from ¡ which the jury could have determined that, as to Olds, the ‘third element of the doctrine was satisfied. The uncontradieted testimony of plaintiff and Olds showed that Olds’ first warning of the impending rear end collision was when plaintiff yelled that a car was going to hit them. Olds, who never saw the approaching car, only had time to turn his wheel to the right and slump in his seat. Even if that testimony were disregarded, there was no contrary evidence to indicate that Olds had any chance whatever to avoid the accident. Therefore, as to Olds, the trial court erred in giving an instruction on last clear chance. “Since the instruction may have influenced the jury in arriving at a verdict for plaintiff and since the jury might well have found plaintiff guilty of contributory negligence contributing proximately to his own injury, the error is prejudicial.” (Kowalski v. Shell Chemical Corp., 177 Cal.App.2d 528, 537 [2 Cal.Rptr. 319].)
The last clear chance instruction, however, was proper as to Young and Hurt. There was evidence from which the jury could infer that Young actually saw plaintiff in his position of peril and should have realized plaintiff could not escape, and that Young had time to avoid the collision. Zumwalt *352 Road was a straight, level road at the accident site. The -weather was clear. Sunset was at 7:32 p.m. Olds testified that the accident occurred at approximately 7:30 p.m. when there was “good visibility.” Various witnesses estimated the visibility to have been between % and % of a mile. Young’s speed was placed at 60 to 80 miles per hour. As he approached, no other traffic intervened between him and Olds’ pickup. Plaintiff and Olds testified there was room on the road to the left of the pickup for Young to have passed or swerved by them. This same evidence, though in part contradicted, also supported the trial court’s denial of the motion made by Young and Hurt for judgment notwithstanding the verdict. (See Spillman v. City & County of San Francisco, 252 Cal.App.2d 782, 786 [60 Cal.Rptr. 809]; Robinson v. North American Life & Cas. Co., 215 Cal.App.2d 111, 118 [30 Cal.Rptr. 57].)
The order granting defendants a new trial is affirmed. Their cross-appeals from the judgment are dismissed as moot. The order denying defendants Young and Hurt judgment notwithstanding the verdict is affirmed.
Pierce, P. J., and Friedman, J., concurred.
A petition for a rehearing was denied December 10,. 1968, and the petition of the plaintiff and appellant for a hearing by the Supreme Court was denied January 8, 1969.
Notes
The 1939 legislation (Stats. 1939, ch. 713, p. 2234) amended the last paragraph of section 657 to provide: “When a new trial is granted, on all or part of the issues, upon the ground of the insufficiency of the evidence to sustain the verdict or decision the order shall so specify this in writing and shall “be filed with the clerk within ten days after the motion is granted; otherwise, on appeal from such order it will be conclusively presumed that the order was not based upon that ground. ...”
Nor has our own research found any case discussing whether, under the 1939 amendment of section 657, insufficiency of the evidence could be specified as a ground by a nunc pro tunc order made (1) after the 10-days allowed by that section had expired but (2) before the end of -the 60 days during which section 660 gave the court power to determine the motion.
The evidence conflicted as to whether Young” was using the shoulder or was completely within the northbound lane. An instruction was neither given nor requested concerning Young’s duty to drive “upon the right half of the roadway . . . .” (