140 Cal. App. 272 | Cal. Ct. App. | 1934
This is an appeal by the defendants from a judgment in favor of plaintiff entered in conformity with the verdict returned by a jury.
The essential facts which are disclosed by the record may be summarized as follows: At about 5 o’clock P. M. of the afternoon of August 18, 1931, the plaintiff was driving a touring type Dodge automobile in a northerly direction on Orange Avenue in the city of Fresno and was approaching the intersection of Orange Avenue with Butler Avenue. At the same time the defendant J. Fred Shedd was driving a touring type Lincoln automobile in a westerly direction
The first contention advanced by appellants is that the judgment lacks evidentiary support for the reason that the evidence established that the plaintiff was himself guilty of contributory negligence as a matter of law. In advancing this contention it is conceded that evidence was produced at the trial from which the jury was warranted in finding that appellant Shedd was guilty of negligence. It is also conceded that the correct rule which is applicable to this contention is as declared in Cummins v. Yellow & Checker Cab Co., 127 Cal. App. 170, 175 [15 Pac. (2d) 536], in the following language: “It is a question of law for the court only when the facts are undisputed, and only then where on those facts reasonable minds can draw but one conclusion.”
Since the automobile operated by appellant Shedd approached the intersection from respondent’s right side it is obvious that two factors are important on the issue of contributory negligence. These are the rate of speed at
In urging that this court must declare that respondent was guilty of contributory negligence as a matter of law, it is said that the only positive evidence which was produced on the question of who first entered the intersection was the testimony of Shedd as above noted. From this it is said to follow that- respondent was guilty of negligence in failing to yield the right of way to Shedd and that this failure constituted negligence which contributed to the happening of the collision. It is further urged that respondent's failure to look again to the east and to make any further observation of Shedd's automobile which he estimated was approaching the intersection at a speed of approximately 35 to 40 miles per hour constituted negligence as a matter of law which contributed proximately to the happening of the collision.
With respect to the contention that the only direct evidence on the important question of which man first entered the intersection consisted of Shedd's positive testimony that immediately after he had crossed the east boundary of the intersection he observed that respondent’s automobile was just then entering the intersection, it may be conceded that such is the case. Nevertheless, we think that the jury was entitled to consider respondent’s testimony on this point.
We also entertain the conviction that we are not called upon to declare that respondent was guilty of negligence as a matter of law because he testified that he looked
It is contended by appellants that the trial court committed reversible error in excluding evidence relating to the conditions which existed at the southwest corner of the intersection in which the collision occurred. Examination of the record discloses that the question of whether or not the intersection was an obstructed or blind intersection had an important bearing on the issue of the alleged contributory negligence of respondent. It is pointed out that the trial court permitted a full showing of the conditions which existed at the southeast corner of the intersection but it is charged that the court did not permit such showing as to conditions which existed at the southwest corner. Appellant-County of Fresno particularly complains of the court’s ruling. The ground of complaint is that the language of subdivision b-2 of section 113 of the California Vehicle Act provides as follows:
“Fifteen miles an hour in traversing an intersection of highways when the driver’s view is obstructed. A driver’s*279 view shall be deemed to be obstructed when at any time during the last one hundred feet of his approach to such intersection he does not have a clear and uninterrupted view of such intersection and of the traffic upon all of the highways entering such intersection for a distance of two hundred feet from such intersection.”
In accordance with this language it is said that it was just as important to show the conditions which existed at the southwest corner of the intersection as to show those that existed at the southeast corner, since if the view of the respondent was obstructed either to the east or to the west at any point during the last 100 feet of his approach to the intersection the rate of speed at which he was legally permitted to cross the intersection was limited to 15 miles per hour. It is then pointed out that evidence was produced by appellants which would have justified the jury in finding that respondent traversed the intersection at a speed of 30 miles per hour. The final step in this argument is that, since there was evidence from which the jury might have concluded that respondent exceeded the speed limit permitted in an intersection where the view of approaching drivers was obstructed, therefore the fact finding body might have found that respondent was guilty of contributory negligence if the trial court had not made the ruling of which complaint is here presented.
The contention is entirely lacking in merit. Examination of the record shows that the ruling occurred during the cross-examination of a witness called by respondent. This witness was permitted to testify fully as to the conditions that existed at the southwest corner of the intersection. He stated that at the southwest corner there was an apartment house which was located not more than 50 or 55 feet south of Butler Avenue and that it stood 15 or 20 feet from the west curb of Orange Avenue. He further testified that there was a pole between the apartment house and the corner of the intersection. At this point and when no question was pending an objection was interposed on the ground that the southwest corner of the intersection was not involved in the case and that any inquiry regarding the southwest comer was immaterial. The objection was sustained. Notwithstanding the court’s ruling in sustaining the objection when no question was pending the record shows that the
Appellant County of Fresno further contends that the trial court improperly and incorrectly advised the jury in various specified instructions. -
It is contended that the court incorrectly advised the jury that this appellant had admitted in its answer that its co-defendant was acting in the scope of his employment at the time of the collision. The record shows that the first paragraph of respondent’s complaint alleged as follows: “That the defendant, J. Fred Shedd, is and was during all of the times alleged in this complaint an employee of the said County of Fresno, employed in said work of maintaining and repairing the said public roads, and was engaged in said work.” Paragraph III of the complaint alleged that Shedd, on August 18, 1931, in the performance of his work as a county employee and while engaged in doing said work and while acting within the scope of his employment was driving an automobile westerly on Butler Avenue. Paragraph IV of the complaint alleged that on the above-mentioned date and at the intersection of Butler and Orange Avenues, J. Fred Shedd, “in said performance of his said work for the defendant, County of Fresno”, so negligently, etc., operated his automobile that he caused the same to collide with respondent’s automobile. The answer of appellant County of Fresno contained no denial of the allegations
It may be conceded that it is open to doubt whether or not the court’s ruling and instruction which had the effect of relieving respondent from the burden of establishing that at the time of the collision appellant Shedd was acting in the scope of his employment was correct. Nevertheless, a review of the record impels the conviction that, assuming that the ruling and instruction were incorrect, no prejudice resulted to appellant County of Fresno therefrom. The only evidence which was produced during the trial which had a direct bearing on the question of whether or not appellant Shedd was acting in the scope of his employment when the collision occurred consisted of the testimony of Shedd, who stated that at the time of the accident he was on his way home, but that he intended to stop at the courthouse for the purpose of consulting with one of the county supervisors of Fresno County with respect to several matters about which the witness desired information. This evidence also showed that the day on which the collision occurred was the day of the week which had been designated by the supervisors for the appearance of this witness at the offices of two
Appellant County of Fresno contends that the trial court erroneously instructed the jury with reference to the issue of contributory negligence. The particular instruction which is attacked as containing an incorrect statement of law is as follows:
“ . . . Therefore in considering the evidence, the first two issues that you shall determine under said evidence are as follows:
“1. Was the defendant Shedd guilty of negligence which proximately caused said collision and the resultant injury and damages, if any, to the plaintiff?
“2. Was the plaintiff guilty of any negligence which proximately and directly contributed to or was a proximate cause of the said collision and the injuries and damage, if any, to plaintiff?” (Italics ours.) ,
The record shows that three instructions bearing on the question of contributory negligence were given. In addition to the above-quoted instruction which was given at respondent’s request, the court gave two other instructions at the request of appellants. One of these latter instructions was in the following language:
“You are instructed that the law does not concern itself with the relative degree of negligence of the plaintiff and the defendants. Thus, if you find that the defendants were negligent and that their negligence proximately caused the injury of which the plaintiff complains, and you further find that the plaintiff himself was negligent, and that his negligence proximately contributed to the injuries of which he complains, you are not to concern yourself with the question as to whether the plaintiff’s contributory negligence was equal to or greater than or less than that of the defendant’s negligence. Contributory negligence if proven*283 is a bar to the plaintiff’s recovery, regardless of its relative degree.”
The second of such instructions was as follows:
“You are instructed that if the plaintiff, W. Earl Hill, was guilty of negligence which proximately caused or contributed to the collision, he is not entitled to recover any damages. Therefore, if you shall find that the plaintiff W. Earl Hill was guilty of negligence which proximately caused or contributed to the collision, he is not entitled to recover.”
The complaining appellant argues that the two instructions which were given at the request of appellants correctly advised the jury that respondent’s asserted negligence would bar recovery if it proximately contributed to the occurrence of the collision. It is urged that the instruction which was given at respondent’s request imposed an unwarranted burden on appellants in that it advised the jury that respondent’s negligence must be found to have “directly” contributed to the collision before the jury would be justified in finding in favor of appellants on the issue of contributory negligence.
We think that it must be conceded that the instruction was erroneous. We are not, however, convinced that the error was so prejudicial to appellants or to either of them as to demand a reversal of the judgment. In the first place, the language which is challenged as an incorrect definition of contributory negligence occurs in an instruction which purported to inform the jury generally as to the two issues which were submitted for their determination. In the two instructions which were given at the request of appellants, the jury was properly and more definitely advised that if it should find that respondent was guilty of negligence which proximately caused or contributed to the collision he was not entitled to recover. It is manifestly improper for a reviewing court to select one particular instruction and to consider it separately from the entire body of instructions of which it forms merely a part. Especially is this true when it is apparent that the criticised instruction purports to describe in general terms the issues which are submitted for the jury’s determination. Evidently if the criticised instruction had omitted the words “and directly” appellant would have had no cause for complaint since its meaning
Further complaint is voiced by appellant County of Fresno that the trial court erred in submitting to the jury the question of whether or not the collision occurred in a residential district. In the instruction which presented this matter for consideration the. jury was advised that the California Vehicle Act provides that the driver of a motor vehicle may operate the same at a speed not exceeding 25 miles per hour in a residence district. In the same instruction the court defined the term “Itcsidencc district” in the language of the aforementioned statute. It is conceded by appellant that the evidence was sufficient to support a finding that the required number of dwelling houses and business structures specified in the act were located on one side of the highway within the required distance. It is, however, urged that this was not sufficient to justify the court in submitting the question to the jury as it is urged that it was incumbent on respondent to establish the additional fact that the district was sign-posted as a residence district as required by section 116 of the California Vehicle Act. In the absence of a showing that the district was sign-posted it is said that the highway along which appellant Shedd was driving as he approached the intersection was conclusively presumed to be outside a residence district. In support of its contention that the submission of the question was prejudicially erroneous, appellant urges that if the instruction respecting the speed permitted in a residence district had been omitted the jury might well have concluded that a speed in excess of 25 miles per hour was permissible to appellant Shedd in approaching the intersection whereas the giving of the instruction may have caused the jury to conclude that such speed was unlawful. It is pointed out that this question had an important bearing on the question of the alleged negligence of Shedd since the respondent testified
It may be conceded that since the respondent requested the giving of the instruction which submitted the question to the jury he should have produced evidence to show that the district was sign-posted as a residence district. It may therefore be assumed that the submission of the question -was erroneous under the circumstances. It does not, however, follow that the submission of the question was prejudicially erroneous. The appellant complaining of the court’s action in this regard has expressly conceded that the evidence was sufficient to support a finding that the appellant Shedd was negligent. Having this concession in mind, it is difficult to conceive how the court’s action could have been prejudicial to appellant. Moreover, the record demonstrates that the court in another instruction properly advised the jury that the California Vehicle Act provides that any person driving 'a vehicle on the public highways shall drive the same at a careful and prudent speed not greater than is reasonable and proper and that no person shall drive any vehicle upon a public highway at such speed as to endanger the life, limb or property of any person. Evidence was submitted from which the jury may well have concluded that appellant Shedd approached the intersection and traversed it at a rate of speed which was not reasonable and proper under the circumstances. Furthermore, evidence was submitted from which the jury may have concluded that respondent was first in the intersection and that Shedd failed to yield the right of way to respondent and that such failure was the proximate cause of the collision without reference to the speed at which Shedd was traveling. Finally, it must be borne in mind that the respondent did produce evidence which was not contradicted which showed that for a distance of 930 feet along Butler Avenue adjacent to the intersection there were 19 business structures and residences. This was ample to indicate that the territory was in fact a residence district as this expression is defined in subdivision (b) of section 28% of the California Vehicle Act. Under all the circumstances, we feel that we cannot declare that the submission of the question to the jury was so prejudicial to the complaining appellant that a miscarriage of justice resulted therefrom.
Appellant County of Fresno presents another ingenious argument in support of a contention that the trial court erroneously advised the jury with respect to the question of damages. In his complaint respondent demanded compensatory damages in a total amount of $51,500, which was divided into the following elements: (1) $20,000 for loss of earning capacity; (2) $1500 for medical and hospital charges, expenses incurred for nursing and kindred expenses ; and (3) $30,000 for elements of damage including physical pain and suffering. In the various instructions which the trial court gave with respect to damages it advised the jury that if it should find for the respondent and discover that he was entitled to any amount by way of compensation it should award such total amount as would fairly
The answer to the contention thus advanced is that the record shows that appellant County of Fresno did not request the trial court to instruct the jury to segregate the various elements of damage specified in the complaint and to find separately as to each one of the three elements for which compensation was demanded. Appellant may not, therefore, justly complain of the court’s failure in this regard (Bloomberg v. Laventhal, 179 Cal. 616, 620 [178 Pac. 496]). The situation is analogous to that which is presented when a trial court in an action for damages renders judgment upon findings which are uncertain because it does not appear therefrom what elements the court considered in ascertaining the amount of damages allowed. Application of the familiar rule that any uncertainty in the findings must be so construed as to uphold rather than to defeat a judgment compels affirmation of a judgment under such circumstances (Murphy v. Stelling, 8 Cal. App. 702, 705 [97 Pac. 672]).
The final complaint of appellant County of Fresno is that the award of damages to respondent in the amount of $35,000 is excessive. The only method by which this question may properly be determined consists in a comparison of the award with the evidence produced during the trial of the action (Zibbell v. Southern Pac. Co., 160 Cal. 237 [116 Pac. 513]). The record shows that the undisputed evidence presented by respondent on the question of the injuries sustained by him as a result of the collision
The judgment is therefore affirmed.
Barnard, P. J., and Marks, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on August 31, 1934, and an application by appellants to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on September 27, 1934.