NADINE GIGLIOTTI, a Minor, etc., et al., Plaintiffs and Appellants, v. JOSEPH ERNEST NUNES, Respondent; RHODA GIGLIOTTI, Cross-Defendant and Appellant. ARTHUR MATTS, a Minor, etc., et al., Plaintiffs and Appellants, v. JOSEPH ERNEST NUNES, Respondent; RHODA GIGLIOTTI, Cross-Defendant and Appellant.
S. F. No. 19200, S. F. No. 19201
In Bank
Aug. 23, 1955
Rehearing Denied September 21, 1955
45 Cal.2d 85
Campbell, Custer, Warburton & Britton, Frank L. Custer and W. R. Dunn for Respondent.
In November, 1947, a 1946 Dodge sedan in which plaintiffs (minors at the time) were riding as guests collided with a truck owned and operated by defendant and cross-complainant, Joseph Nunes. The Dodge was being driven by one Walters who died as a result of injuries received. Nunes’ answer to plaintiffs’ amended complaints denied negligence generally, and pleaded affirmative defenses of contributory negligence, assumption of risk, imputed negligence of the driver of the Dodge, unavoidable accident, res judicata and estoppel. Plaintiffs’ motions to strike the latter two defenses were granted. Nunes also filed a cross-complaint for damages to his truck against the minor plaintiffs in both actions and brought in as an additional cross-defendant Rhoda Gigliotti, mother of two of the plaintiffs. In the cross-complaint it is alleged that Walters, driver of the Dodge, operated it negligently while acting as the servant, agent and employe of the cross-defendants.1
At the conclusion of the trial motions for nonsuit on the cross-complaint were granted as to the minor cross-defendants but denied as to Mrs. Gigliotti. Verdict and judgment followed in favor of defendant Nunes and against plaintiffs as to the causes of action alleged in the complaint, and also in favor of Nunes for $300 on his cross-complaint against Mrs. Gigliotti. Motions of plaintiffs and Mrs. Gigliotti for a new trial were denied.
As grounds for reversal plaintiffs2 urge error in the instructions, and prejudicial misconduct of defendants’ counsel. Mrs. Gigliotti also contends that the court should have permitted her to plead or prove that the cause of action stated in the cross-complaint against her was barred by reason of defendant‘s failure to plead it in a prior action she had brought against him (see
Defendant Nunes was driving his truck and trailer south on Bayshore, intending to turn left into Berryessa. The truck was about 32 feet in length, and attached to it by a tiebar was a trailer, 23 feet 10 inches in length, equipped with cattle racks. The overall length of the equipment was 59 feet 10 inches, and it weighed more than 19,500 pounds. The Dodge sedan driven by Walters, in which plaintiffs and Mrs. Gigliotti were riding and with an empty horse trailer attached, was proceeding north on Bayshore. Mrs. Gigliotti and one of the plaintiffs were in the front seat beside Walters and the other three plaintiffs were in the back seat. As defendant‘s truck turned left onto Berryessa it and the Dodge collided. As a result Mrs. Gigliotti and the plaintiffs suffered personal injuries and, as already noted, Walters was fatally injured.
Evidence as to the circumstances of the accident is in sharp conflict. Defendant testified that he had been driving between 12 and 15 miles an hour, in the center lane of Bayshore, and slowed down as he reached the Berryessa intersection. A “good block” from Berryessa he put the mechanical arm signal of his truck out for a left turn, and left it there. He saw two groups of automobiles approaching from the south, the first consisting of two or three cars traveling at an “ordinary speed” of 40 to 50 miles an hour; they were an “ordinary driving distance” apart. The second group consisted of three cars, the first of which was 700 to 800 feet behind the last car of the first group. Defendant paid no attention to the speed of the cars in the second group. He was 200 or 300 feet from the intersection when the first car of the first group reached it. He stopped or nearly stopped when he reached the intersection just as the last car of the first group
One Fowler, testifying for defendant, stated that he was in his car at the stop sign on Berryessa on the east side of Bayshore when he saw defendant‘s equipment approaching. The left turn signaling arm was straight out, indicating a left turn, although it was pointing downward after the accident. The witness first saw the Dodge about 500 feet south, going about 55 miles an hour, and saw no cars go through the intersection before the Dodge. Defendant‘s truck was traveling 10 to 12 miles an hour and started to turn with no change in speed. The Dodge was then 150 to 200 feet from the intersection and still traveling at the same speed. As soon as the truck started to turn the witness knew the accident was going to happen because the Dodge was so close that defendant could not get his 60-foot truck and trailer across in front of it. As the truck reached the east lane the witness
Other witnesses for defendant testified that his signaling device was out for a left turn, that the Dodge had been traveling about 45 miles an hour possibly a block or half a block from Berryessa, and that its speed at the moment of impact was about 50 miles an hour.
Truck driver Whittaker testified, for plaintiffs, that he had been driving east on Berryessa, toward Bayshore, and first saw defendant‘s truck north of the intersection and traveling at 20 to 25 miles an hour. Defendant‘s truck slowed down and meanwhile two northbound cars on Bayshore went through the intersection. Just after the second car passed, the truck began to turn left right in front of the Dodge; the Dodge was then about 80 feet south of the intersection, near the railroad tracks, and moving between 40 and 45 miles an hour. The truck, which was going 4 to 5 miles an hour when it began the left turn, picked up speed until it was traveling 8 to 10 miles an hour at the moment of impact. The Dodge veered to the right when the truck began to turn and traveled about 64 feet to the point of impact; it was then going 35 to 40 miles an hour. The left front bumper of the truck hit the left front side of the car and moved the car sideways 4 or 5 feet. The Dodge left tire marks 4 to 5 feet long extending easterly from the point of impact; it also left “skid marks” behind it to the south. After the collision the witness asked defendant why he had pulled out in front of the Dodge and defendant replied that he didn‘t see it.
Two other witnesses testified that they heard defendant state, at the scene of the accident, that he had let two other cars go by but had not seen the Dodge. The witness Penny, also testifying for plaintiffs, stated he was driving behind defendant, was still behind him when defendant‘s truck started to turn left, and saw no mechanical or arm signal indicating an intent to turn left; just before the truck started the left turn the witness saw the Dodge at about the railroad tracks traveling 40 to 45 miles an hour; he noticed the Dodge because he “knew it was awful close for the truck to try to
Plaintiff Arthur Matts, who was riding in the front seat of the Dodge, testified that the Dodge had been traveling about 40 miles an hour a block or two before the accident; he estimated that the truck was about 150 feet north of the intersection when he first saw it and the Dodge some 150 or more feet south of the intersection; when the Dodge reached the railroad tracks the truck began to turn left right in front of the Dodge; he felt the Dodge swerve to the right and felt the application of the brakes; he was knocked out by the collision and did not see the two vehicles come together or know where the impact occurred. Mrs. Gigliotti placed the speed of the Dodge at about 35 to 40 miles an hour along Bayshore, and also testified that the truck turned left when the Dodge was about 50 feet south of it, near the railroad tracks, and Walters then applied the brakes of the Dodge. Of the other three minor plaintiffs two had no memory concerning the happening of the accident, and the third testified the Dodge was going about 35 miles an hour and was about at the middle of Berryessa Road when the truck turned in front of it.
Although other evidence also favors each of the parties, it is apparent from that summarized above that while the jury‘s verdict for defendant is not as a matter of law unsupported by the evidence, a verdict in favor of plaintiffs and of Mrs. Gigliotti would find substantial support in the testimonies of defendant, himself, and his witnesses and in the physical circumstances as well as in the evidence produced by and on behalf of the plaintiffs. It bears mention as a matter of common knowledge that one of the most hazardous of all highway traffic maneuvers is a left turn by a ponderous, slow moving vehicle in the face of oncoming traffic.
As ground for reversal, it is first contended that the court erred in refusing to give plaintiffs’ requested instruction on the presumption of due care (
Although there is no room for the presumption where the driver or other person whose claimed negligence is at issue himself testifies to his actions at the time involved (see Speck v. Sarver (1942), 20 Cal.2d 585, 587-588 [128 P.2d 16]), the rule is established that if such person be deceased or unable to testify by reason of loss of memory, the fact that other witnesses for the parties testify fully as to the acts and conduct of the allegedly negligent person does not deprive the party relying on the presumption of the benefit thereof unless the testimony which he himself produces “under circumstances which afford no indication that the testimony is the product of mistake or inadvertence . . . is wholly irreconcilable with the presumption sought to be invoked.” (Westberg v. Willde (1939), 14 Cal.2d 360, 365-368 [94 P.2d 590]; Mar Shee v. Maryland Assur. Corp. (1922), 190 Cal. 1, 9 [210 P. 269]; Chakmakjian v. Lowe (1949), 33 Cal.2d 308, 313 [201 P.2d 801].) Plaintiffs’ evidence in the present case is not irreconcilable with the presumption.
The benefit of the presumption has frequently been held available to plaintiffs in wrongful death actions (see Anthony v. Hobbie (1945), 25 Cal.2d 814, 819-820 [155 P.2d 826]; Westberg v. Willde (1939), supra, 14 Cal.2d 360; Ellison v. Lang Transportation Co. (1938), 12 Cal.2d 355, 358-360 [84 P.2d 510]; Mundy v. Marshall (1937), 8 Cal.2d 294 [65 P.2d 65]; Smellie v. Southern Pac. Co. (1931), 212 Cal. 540 [299 P. 529]; see also Mar Shee v. Maryland Assur. Corp. (1922), supra, 190 Cal. 1), as well as to one who by reason of loss of memory is unable to testify concerning his conduct at and immediately before the time of the accident. (See Scott v. Burke (1952), supra, 39 Cal.2d 388, 394, and cases there cited.) In an action brought to recover for the wrongful death of Walters the presumption plainly would apply if contributory negligence by Walters were made an issue.
Since, however, it likewise is the rule that no presumption of due care on the part of the deceased driver Walters would carry with it the presumption of negligence on the part of defendant Nunes (see Greene v. Atchison, T. & S. F. Ry. Co. (1953), 120 Cal.App.2d 135, 139-141 [260 P.2d 834,
Plaintiffs urge that the conduct of Walters was important, nevertheless, in determining whether defendant‘s conduct was negligent (i.e., the speed and distance away of the Dodge driven by Walters and what defendant should have observed with respect to it before turning the truck left in front of the Dodge), and that if the due care presumption had been before the jury they might have concluded that Walters was not driving at an excessive or negligent speed, that he was observing the speed limit of 45 miles an hour for a passenger motor vehicle drawing a trailer (established by
Although no case had been cited or discovered wherein applicability of the presumption has been affirmed or denied upon a congeries of circumstances exactly the same as those here present, we are convinced that plaintiffs’ position accords with the principles which have governed or underlain application of the rule in the cases cited. Certainly nothing in
With respect to the cross-defendant, Mrs. Gigliotti, defendant‘s recovery against her was based upon alleged negligence of Walters, imputed to her, and consequently the presumption was likewise applicable and prejudicial error resulted from refusal to give it.
Defendant, however, urges that the due care instruction of-
Defendant argues that although admittedly the court correctly instructed the jury that the plaintiffs had the burden of proving the allegations of the complaint by a preponderance of evidence, nevertheless by the statement in plaintiffs’ proposed instruction that the presumption of ordinary care on the part of Walters “shall prevail and control your deliberations until and unless it is overcome by satisfactory evidence” the jury would have understood that defendant had the burden of “overcoming” the presumption and that “overcome” could only mean by a preponderance of evidence. The due care instruction, however, does not mention either “burden of proof” or “preponderance of evidence,” and, further, the language attacked by defendant was expressly approved by this court in Westberg v. Willde (1939), supra, 14 Cal.2d 360, 364-365 (see also cases there cited). Thus the failure to give the instruction cannot be excused because of its form.
Other alleged errors urged by plaintiffs as to jury instructions as well as asserted prejudicial misconduct on the part of counsel for defendant may not occur on a new trial and therefore need not be discussed here.
Finally, cross-defendant Mrs. Gigliotti contends that the trial court erred to her prejudice in refusing to permit her to plead or prove that the cross-complaint against her was barred by
No abuse of the court‘s discretion in so ruling appears. The record shows that on two occasions during the trial counsel for Nunes offered the file of the prior action between Mrs. Gigliotti and Nunes in evidence in an attempt to prove that the judgment in Nunes’ favor therein was res judicata on the issue of Nunes’ negligence and actually adjudicated negligence on the part of Walters, driver of the Dodge. On both occasions counsel for Mrs. Gigliotti objected vigorously on the ground that the files or “anything in connection with the previous trial . . . is incompetent, irrelevant and immaterial . . .” On the first occasion the court pointed out that the prior judgment was likewise consistent with no negligence on the part of either Nunes or Walters and denied the offer of proof. On the second occasion the court reserved its ruling, with the comment that if it allowed the records of the prior action in evidence it might force Nunes out of court on his cross-complaint, “as apparently it is conceded” that the prior action arose out of the same accident. Counsel for Mrs. Gigliotti did not then take advantage of the court‘s comment to attempt to promptly amend her answer to the cross-complaint, but instead waited until all of the evidence was in and both sides had rested. Even if we assume that if the file had been permitted in evidence Mrs. Gigliotti could have taken advantage of it to establish that Nunes’ cross-complaint against her was within the scope of the issues in the
For the reasons above stated the judgment is reversed.
Gibson, C. J., Shenk, J., and Carter, J., concurred.
TRAYNOR, J.—I dissent.
Defendant Nunes had the burden of proving that the deceased driver Walters was negligent. Accordingly, there is no basis for invoking a presumption against defendant that Walters was exercising due care. (See Speck v. Sarver, 20 Cal.2d 585, 590 [128 P.2d 16], dissenting opinion; Scott v. Burke, 39 Cal.2d 388, 402 [247 P.2d 313], dissenting opinion.)
Respondent‘s petition for a rehearing was denied September 21, 1955. Edmonds, J., and Traynor, J., were of the opinion that the petition should be granted.