256 P. 457 | Cal. Ct. App. | 1927
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *662
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *663 This is an appeal from a judgment in the sum of $2,033 in favor of the plaintiff Kate Power and against the defendant Crown Stage Company; also an appeal from a judgment in the sum of $2,000 in favor of the plaintiff William Power and against the defendant Crown Stage Company.
Plaintiff Kate Power brought an action against the defendants Crown Stage Company and C. Parks for damages in the sum of $10,000 for injuries, and special damages in the sum of $33 for injuries and damages alleged to have been received by her through the negligence of C. Parks, an agent and employee of defendant Crown Stage Company. The jury returned a verdict for plaintiff in the sum of $2,033. Plaintiff William Power brought an action against the defendants Crown Stage Company and C. Parks for damages in the sum of $10,000 for injuries, and special damages in the sum of $721.85 for injuries alleged to have been received by him through the negligence of C. Parks, an agent and employee of defendant Crown Stage Company, and $1,000 for loss of services of his wife Kate Power. The jury returned a verdict for the plaintiff in the sum of $2,000. *664
The answers of defendants specifically deny the allegations of negligence contained in the complaint; and as a further defense allege, in the case of William Power: "That defendant Parks was driving and operating said motor bus carefully and prudently along the proper side of the boulevard, when suddenly and without warning, a machine with human beings therein stopped with such abruptness that, in order to avoid a collision with said automobile and to avoid injuring the persons therein, and to avoid injuries to the defendant's passengers, it became necessary for said defendant to swerve his car to the left, and that the plaintiff was then driving and operating his said Chevrolet car east on Telegraph road at a high and dangerous rate of speed, to-wit, at a speed in excess of thirty miles per hour; that he was keeping an insufficient lookout for traffic ahead of him upon the highway, and was not exercising ordinary care or any care in the operation of his said Chevrolet automobile, all of which was negligently done, and said negligence directly and proximately contributed to the happening of the accident in question." Similar allegations are in defendants' answer in the case of Kate Power. Both of these actions were tried at the same time, before the same jury, and on the same evidence; and judgments rendered thereon as above stated.
On the second day of September, 1922, defendant Crown Stage Company was operating an autobus on Telegraph road, a public highway running between Los Angeles and Santa Fe Springs. The paved portion of Telegraph road was 20 feet wide and the dirt portion of the highway between the pavement and the fence was 12 feet wide. Defendant C. Parks, the driver, was operating the bus in an easterly direction and traveling at a rate of speed between 25 and 40 miles per hour, following a Ford automobile at a distance of between 3 and 30 feet. The Ford swerved to the left in order to pass a Buick automobile which was either standing or backing up on the highway. The bus turned abruptly to the left of the Ford, departed from the paved portion of the highway on to and across the unpaved portion on the northerly side thereof, and came into collision with the plaintiff's automobile at or near the fence bordering the highway, where both cars stopped. The bus driver testified that he did not see any obstruction ahead until the *665 Ford car swerved to the left on to the center of the road and almost stopped, when he saw the Buick car backing up; that he saw a Chevrolet coming toward him, turned abruptly to the left and went straight across the road into the fence, where the Chevrolet collided with his car on the right front wheel and fender; that he turned across the highway to avoid a collision with the Ford and the Buick. Plaintiff William Power was driving a Chevrolet in a westerly direction at a speed of about 15 miles per hour. He testified that he first saw the approaching bus at a distance of 130 to 140 feet, when it turned to pass the Ford, at a speed of 35 or 40 miles per hour, and left the highway; that at the same time he turned to the right, off from the paved portion of the highway, at a point about 90 feet distant from the bus, slowed down and came almost to a stop on the dirt portion of the highway within a distance of 25 feet, when his automobile was struck on the left front portion by the right front wheel of the bus and carried for a distance of 7 or 8 feet to the fence; that he could have stopped his automobile within a distance of less than 25 feet, but that it would have been directly in the path of the oncoming bus.
Although the evidence was in conflict in many particulars, the record discloses sufficient evidence to support the verdict of the jury, unless there was contributory negligence on the part of the plaintiff. [1] It appears from the bus driver's own testimony that he was guilty of negligence in driving at a rapid rate of speed so close to the Ford car that his view ahead was obstructed, so that when the Ford slowed down it was necessary for him to turn to the left in the path of the west-bound traffic when his car was not under control, making it necessary for him to drive clear off the highway on to the dirt on the wrong side of the highway. [2] Under such circumstances, it cannot be held that plaintiff William Power was guilty of contributory negligence in failing to stop his car within a distance of 25 feet while the bus was traveling off the highway a distance of 65 feet. The plaintiff William Power was entitled to believe that the driver of the bus would return to the highway after passing the Ford car, and was under no obligation to make any attempt to stop his car until he saw that a collision was imminent. If he had attempted to pass to the left of the bus, he *666
might then have been charged with negligence in attempting to pass on the wrong side, had a collision occurred, even though a prudent driver might under certain circumstances be justified in turning to the left. He was in a position of imminent danger and would not be held to the same degree of care as under ordinary conditions. [3] One in great peril, when immediate action is necessary to avoid it, is not required to exercise all that presence of mind and carefulness which are justly required of a careful and prudent man under ordinary circumstances. (Tousley
v. Pacific Electric Ry. Co.,
Appellants assert that the trial court committed error in giving and refusing certain instructions. [6] Appellants requested the following instruction, which was refused except as given in other instructions: "You are instructed that at the time and place of the accident, the defendants were entitled to operate their bus, in so far as the speed is concerned, at the rate of 35 miles per hour, and upon the question of speed considered alone, I instruct you that it was not negligence for the defendants to operate their car at 35 miles per hour." Appellants' requested instruction was not a correct statement of the law as applied to the facts in this case. Under the Motor Vehicle Act as it existed at that time defendants were not entitled to operate their bus in excess of 30 miles per hour, "except in the daytime and except when . . . there is no person, vehicle or other object visible ahead on such highway . . . within four hundred feet . . ." (Stats. 1919, p. 220.) Under the evidence the conditions which existed at the time of the accident did not permit a speed of more than 30 miles per hour. In lieu of the above instruction, the court gave the following: "Any person operating or driving a motor or other vehicle upon a public highway shall operate or drive the same in a careful and prudent manner, at a rate of speed not greater than is reasonable and proper, having regard to the traffic and use of the highway; and no such person shall operate or drive a motor vehicle or other vehicle upon the public highway at such a rate of speed as to endanger the life or limb of any person or the safety of any property. Now, it is true that in this case there is no question but that the limit at the place in controversy was 35 miles an hour; but the fact that that is the limit does not necessarily mean that anybody going at that speed under *668 all circumstances is careful, because, as I have just read to you, regardless of the limit, every person operating or driving a motor or other vehicle upon the public highway shall operate and drive the same in a careful and prudent manner, and at a rate of speed not greater than is reasonable and proper, having regard to the traffic and use of the highway; and no person shall operate or drive a motor vehicle or other vehicle upon a public highway at such a rate of speed as to endanger the life or limb of any person or the safety of any property. So that if either one of these parties was violating that provision of the law, that party was guilty of negligence, and if the defendant violated that provision of the law, it was negligence, and that negligence was the proximate cause of the injury, then the defendant would be liable, unless the plaintiff was also guilty of some negligence proximately contributing to the injury." [7] Even though the statutory limitation of speed has not been exceeded, the rate of speed at which an automobile may be traveling may be held under some circumstances to be negligence. (Reaugh v. Cudahy PackingCo., supra.) We cannot agree with appellants' contention that the instruction laid stress upon defendants' alleged violation of the law without pointing out the reciprocal duties of the plaintiff. The instruction specifically stated that if either party violated these provisions of the law, that party was guilty of negligence; and then stated that if defendants were guilty of negligence which proximately caused the injury, defendants would be liable, unless plaintiff was also guilty of some negligence proximately contributing to the injury. "Some negligence" on the part of the plaintiff could only refer to the negligence defined in this and other instructions. The instruction did not lay stress upon the speed of appellants' driver, but rather was a general statement of the law as applied to both parties. In a previous instruction the court said: "If you should determine that the defendant's driver was not negligent, that ends the case and you don't have to go any further. If you determine that the driver was negligent, then you must also determine whether the plaintiff, driving his own machine, Mr. Power, whether he was guilty of any negligence which proximately contributed to the injury. If he was, notwithstanding that you find that the defendant is guilty of *669 negligence — if you find that the plaintiff was guilty of negligence, then there can be no recovery, because if both parties are negligent, if there is mutual negligence, there can be no recovery by either party. If the defendant is negligent and the plaintiff is guilty of negligence, no matter how slight, which proximately contributes to the injury, there can be no recovery, because you have no right to compare the negligence of one with the other. If both are negligent, without reference to the degree of negligence, there can be no recovery."
Appellants requested the following instruction: "You are instructed that the duty was upon the plaintiffs at all times to operate their automobile with ordinary care and with due regard for other traffic upon the road, and if they saw, or by the exercise of ordinary care could have seen, that the traffic at the point of impact was becoming congested, then it was their duty to slow up or do such other things as would have been reasonably necessary to a prudent person in order to avoid being confronted with danger, and if they failed to do this, that failure was negligence, and if such negligence directly and proximately contributes to the happening of the accident in any degree, however slight, your verdict will be for the defendant notwithstanding the fact you may believe that the defendants were guilty of negligence at the time and place of the accident."
Instead of the foregoing, the court gave the following instruction:
"It was the duty of both parties at all times to operate their machines with ordinary care and with due regard to other traffic upon the road; and if they saw, or by the exercise of ordinary care could have seen, that the traffic at the point of impact was becoming congested, then it was their duty to slow up or to do such other things as would have been reasonably necessary to a prudent person in order to avoid becoming confronted with danger. If they failed to do this, their failure was negligence.
"If the plaintiff was negligent in that respect, and his negligence proximately contributed to the injury, he cannot recover; and if the defendant was negligent in that respect, and that negligence proximately contributed to the injury, and the plaintiff was not negligent, then the plaintiff can recover." *670
[8] Appellants urge in respect to the second paragraph of the foregoing instruction that the court failed to instruct the jury with regard to the degree of negligence that would prevent plaintiff from recovering. It is insisted that the following language should have been used by the court: "If the plaintiff was negligent in that respect and such negligence on his part directly and proximately contributed to the happening of the accident in any degree, however slight," he cannot recover. The equivalent of this suggested instruction had previously been given by the court and is quoted supra. In People v.Mohammed,
[10] The court refused the following instruction, except as given in other instructions, and no other instruction was given on imputed negligence: "You are instructed that this is an action prosecuted both by the husband and the wife. The undisputed testimony of the plaintiff is that the husband was driving the car at the time and place of the accident. Under the law of this state the negligence of the husband is imputed to the wife. That is to say, that if the husband, *672
in law and in fact, was guilty of negligence, then the wife, in law and in fact, was guilty of negligence, and if the negligence of the husband, the driver of the car, directly or proximately contributed to the happening of the accident, in any degree, however slight, your verdict will be for the defendants notwithstanding the fact you may believe that the defendants themselves were guilty of negligence at the time and place of the accident." This instruction should very properly have been given and it was error to refuse it. (McFadden v. Santa Ana etc. Ry.Co.,
[11] Appellants argue that respondents were not entitled to instructions on the theory of imminent danger, but that if so entitled, the instruction so given was erroneous, improper, and prejudicial to defendants. We have before indicated that the testimony shows that plaintiffs were in a position of imminent danger. It therefore follows that respondents were entitled to a proper instruction on that subject. The court instructed the jury that if they found "that the plaintiff while in the exercise of ordinary care was suddenly confronted with danger, not brought on by his own negligence," etc. Appellants object to the words "not brought on by his own negligence," for the reason that the instruction does not limit the situation of danger with which plaintiffs were confronted as being brought about through the negligence of *673
defendant C. Parks. In support of their contention, appellants cite Howard v. Worthington,
[12] The jury returned verdicts in favor of the plaintiffs, but the clerk entered judgment against the defendant Crown Stage Company only, and not against defendant C. Parks. Appellants contend that the judgments are void for this reason. In support of their argument appellants *674
cite the cases of Thompson v. Southern Pacific Co.,
"We, the jury, in the above entitled action, find for the plaintiff Kate Power and assess the damages in the sum of two thousand and thirty-three dollars ($2033), this 14th day of June, 1923.
"FRANK G. SPRAKE, Foreman."
A similar verdict was returned in favor of the plaintiff William Power.
The judgment reads as follows: "Wherefore, by virtue of the law, and by reason of the premises aforesaid, it is ordered, adjudged and decreed that said plaintiff Kate Power have and recover from said defendant, Crown Stage Company, the sum of two thousand and thirty-three dollars ($2,033), together with her costs and disbursements incurred in this action, amounting to the sum of 38 25/100 dollars." A similar judgment was entered in favor of the plaintiff William Power. While judgments should have been entered against both defendants, it does not follow that the judgments as entered against the Crown Stage Company only are void. The liability of principal and agent was both joint and several. Such error in the judgment may be amended by the trial court at any time in such manner that it should properly designate both defendants, provided the amendment does not affect the substantial rights of the defendants, but consists of a clerical mistake appearing on the face of the record. (Boust v.Superior Court,
There being no prejudicial error, it is ordered that the judgments be affirmed.
Conrey, P.J., and Houser, J., concurred.
A petition 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 June 30, 1927.