296 P. 902 | Cal. Ct. App. | 1931
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *263 This is an action in which the plaintiffs seek to recover damages for the death of their son, caused by a motor vehicle accident. The accident occurred in the city of Bakersfield, in a subway under the Santa Fe Railroad tracks, on Union Avenue, a paved street which runs north and south. The bottom of the subway is flat for eighty feet, and the ascent on either side is 300 feet long from the level of the bottom to the street level above, the grade on these ascents being about five per cent. At a point on the east side of the north incline, about 100 feet up the slope from the beginning of the ascent and twelve feet east of the east edge of the pavement, on the night here in question, there was a hole about four feet long, north and south, three feet wide and one and one-half feet deep. The twelve feet from the pavement to this hole was a gradual rise and from the hole on, the slope of *264 the bank sharply ascended to the ground level. The hole was, in fact, one in the bank, having been made by the water washing part of the bank away at that point. This accident occurred about 8 o'clock in the evening of September 8, 1929, while the pavement was wet from a recent rain. One Walter L. Lawrence, an automobile salesman, was demonstrating a Hudson automobile to plaintiffs' son, and they were accompanied by five mutual friends. The Hudson car was proceeding north on Union Avenue and the testimony shows it stalled about five blocks south of the subway, but was again started in some manner not appearing from the evidence. About the time it reached the entrance to the subway, the car again stalled. Five of the men, including Graves and Lawrence, alighted. Lawrence testified that he told the driver that they would give the car a push and if it started to run, to pull up on the hill on the other side and wait for them. The car was given a push and the motor started. One witness testified that the motor started before the car reached the entrance to the subway, and that it entered the subway on its own power. Another witness thought the engine may not have started until the car was ten or twelve feet along the descending slope. The car stalled again in the bottom of the subway, and the five men walked down to it and attempted to push it on through. However, one of the men, McBride, went back about thirty feet for the purpose of flagging approaching cars. He succeeded in flagging three cars, one of which came to a stop and the other two slowed down and went around the stalled car. Subsequently a stage, owned by one of the defendants and driven by the other, entered the subway from the south. McBride tried to flag this stage but when he saw it was not going to stop, he shouted a warning to the others that they were going to be hit. Two cars with bright headlights were entering the north incline of the subway, so that the stage could not pass to the left of the Hudson. By this time the Hudson, which was being pushed, had reached a point on the pavement directly opposite the hole above referred to. The driver of the stage in attempting to pass on the dirt to the right of the Hudson, ran into the hole and the stage tipped over against the Hudson. The Hudson was hit about fifteen feet back from the front of the stage, which was *265 twenty-five feet long. The son of the plaintiffs was killed, and this action resulted. The jury brought in a verdict for the plaintiffs for $15,000. A motion for a new trial was denied upon the condition that $8,000 of this be remitted, which was done, and this appeal is from a judgment for $7,000, which followed.
[1] Appellants' first point is that the evidence is not sufficient to support the verdict of the jury as to negligence upon their part which proximately caused the injuries complained of. It is argued that there is no evidence to show excessive speed or other negligence; that the driver of the stage testified that he entered the subway at twenty miles an hour; that he did not see the Hudson until within twenty feet of it; that he was then going about fifteen miles per hour; that he was unable to pass to the left of the Hudson because of approaching automobiles; and that he thought there was room to pass to the right of the Hudson, between that machine and the bank. On the other hand, McBride, who had gone back to flag approaching cars, testified that other approaching cars either stopped or slowed down sufficiently to pass, and that he tried to stop the stage, without success; and that the stage was traveling forty-five or fifty miles an hour when it passed him. Appellants point out that he was not a good judge of speed, as he testified at the coroner's inquest, "No; I'm not what you would call a good judge of speed but it was going very fast." While this might affect the weight of his evidence, that argument is one for the jury. One of appellants' witnesses (Keck) testified that just as he was entering the south slope of the subway in a Ford coupe, at about twenty-five miles an hour, the stage passed him and proceeded down the incline. The driver of the stage testified that he did not apply his brakes as he descended the slope, but that when he first saw the Hudson, when about twenty feet therefrom, he put his car in second speed and set his brakes. If McBride's testimony could be disregarded, it still appears from the evidence that a stage, twenty-five feet in length, traveling at a rate of speed sufficient to pass another car going twenty-five miles an hour, entered a decline of five per cent grade which was 300 feet long, passed down the same without its brakes being applied, and crossed over a level strip eighty feet in length; that it then proceeded up more than *266
100 feet of ascending five per cent grade; that during the last thirty-five feet of this (the front of the car having passed fifteen feet beyond the Hudson) the car was in second gear with its brakes set; that it then stopped because its wheels dropped in a hole a foot and a half deep; and that it then struck the Hudson with sufficient force to knock it fifteen feet farther up the grade. With such evidence in the record it can hardly be said, as a matter of law, that the stage was running through a subway, over a wet pavement, at a moderate and lawful speed, and that there is no evidence to sustain a different conclusion reached by a jury. In Davis v. Brown,
[3] Appellants next contend that the evidence, in three different aspects, shows contributory negligence upon the part of the deceased. It is first argued that since the deceased and his companions knew that the Hudson car had stalled twice within five blocks of the entrance to the subway, it was contributory negligence, as a matter of law, for them to have started the car down into the subway. It is only where the deduction to be drawn from the evidence is inevitably one way or the other, that the question of contributory negligence is to be withdrawn from the jury. (Wise v. Maxwell Hardware Co.,
[5] It is next argued that the deceased was guilty of contributory negligence as a matter of law, in standing behind the Hudson without taking adequate precaution for his own safety. The evidence shows that some of the party were at the side of the Hudson while pushing it and there is no evidence in the record to show that the deceased was in the rear of the car. A flagman had been sent back, who succeeded in stopping other cars, and who tried to stop the stage. Some precaution being shown, the question of whether or not it was adequate under the conditions shown, was for the jury.
[6] A third argument is, that contributory negligence on the part of the deceased is conclusively shown by the fact that no lights on the rear of the Hudson were visible. In the first place, the evidence on this point is conflicting. While there was testimony that the lights were not seen, there is other testimony that they were burning, and the stage driver's statement that the bodies of men behind the Hudson obscured the light, is contradicted by the testimony of McBride, who testified as follows:
"A. Well, there were some on the right side pushing and some of them on the rear of the car pushing and about the middle. *269
"Q. Were any of them in such a position as to obscure the tail light?
"A. No, the tail light was not obscured."
Even if it were true that the tail-light was obstructed by some person, there is no evidence that this was done by the deceased, or that he had anything to do with causing it to be obstructed.
Not only does a conflict in the evidence appear, as to each of these contentions, but we find no evidence in the record to show that the deceased, as a passenger, did anything that could be conclusively held to be other than would have been done by a reasonable man, under the circumstances. Under the facts shown, the question of contributory negligence was one for the jury.
[7] Appellants next complain of the refusal of the court to give the following instruction on contributory negligence: "Negligence in any degree on the part of the deceased, Howard W. Graves, amounting to a want of ordinary care, which operating concurrently with the negligence of the defendants, if any, contributed proximately to the accident in question, bars a recovery in this action by the plaintiffs, and this is so whether or not the defendants or either of them could have guarded against it by the exercise of ordinary care." It is first contended that this was not otherwise covered, as there was no clear and adequate definition of contributory negligence in the other instructions. In Metcalfe v. Pacific Elec. R. Co.,
This sufficiently covered that portion of the requested instruction and was sufficient in connection with the other instructions given. (Sinclair v. Pioneer Truck Co.,
[8] Appellants next complain of the refusal of the trial court to give the following instruction: "I charge you that a person when suddenly confronted with danger is not to be held to the strict degree of accountability for their acts that they would be under ordinary circumstances, and in judging whether or not the driver of the stage exercised ordinary care as required of him his actions were to be measured by the facts and circumstances as they would have appeared to a reasonably prudent man in the exercise of the highest degree of care; and the fact that he might have taken some other course and thus avoided the accident, when viewed from the circumstances discovered later, would not be negligence on his part, simply because he chose the *271 wrong course to avoid a danger then open and apparent to him."
This instruction left out of consideration the fact that the rule therein set forth applies where a person, without his own fault, finds himself in a position of apparent and sudden peril, (Offerdahl v. Motor Transit Co.,
Error is next claimed because of three instructions which the trial court refused to give, which were as follows:
"(a) If you find that the injury to Howard W. Graves was unavoidable on the part of the defendant Haworth, then you must find for the defendants. In other words, if the accident happened without negligence on the part of defendant Haworth, then the plaintiff cannot recover in this action."
"(b) If from the evidence you believe that at any time before the accident in question, by the exercise of ordinary care the deceased, Howard W. Graves, could have remained or placed himself in a position of safety had he known of the approaching automobile of defendants, and if you further believe that he could have known of the approaching *272 of said automobile by exercising his sense of sight or hearing, then I charge you that the plaintiffs in this case cannot recover damages from the defendants."
"(c) If you believe from the evidence in this case that the deceased, Howard W. Graves, was not exercising ordinary care at the time and place in question, and that but for this failure to use ordinary care on the part of the deceased the accident would have been avoided, then the plaintiff in this action cannot recover and your verdict must be in favor of the defendants."
[9] Not only does the evidence in this case fail to warrant such an instruction as the first of these, but the main purport thereof is covered by two instructions in which the jury were told that in order to find a verdict for the plaintiff, they must find from a preponderance of the evidence that the defendant was negligent; that this negligence was the proximate cause of the injury; that this negligence could not be presumed but must be proved; and that unless they were satisfied from the evidence that the defendants were negligent, and that the deceased was free from contributory negligence, then their verdict must be for the defendants. [10] The second of these instructions overlooks the fact that the deceased was a pedestrian at the time he was injured, and that the law did not necessarily compel him to look behind him for approaching cars. (Devecchio v. Ricketts,
The judgment is affirmed.
Marks, J., and Jennings, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on March 25, 1931. *273