139 Cal. App. 696 | Cal. Ct. App. | 1934
This is an appeal by defendants from a judgment entered on a verdict of a jury awarding damages for personal injuries and for medical, surgical and hospital treatment suffered and incurred by plaintiff as the result of an accident which occurred about midnight on the eighth day of December, 1931, on the Pacific highway a few miles south of the city of "Woodland, when an automobile stage owned by defendant Pacific Greyhound Corporation and operated by defendant Irwin collided with plaintiff.
On the day in question plaintiff was taking a load of Christmas trees from Castella to San Francisco, and accompanying him on the trip were his son, James E. Smith, nineteen years of age, and Ray Hunter, eighteen years of age. In the afternoon of that day the two boys left Cas-tella in plaintiff’s truck with the Christmas trees, plaintiff following in his Dodge sedan. When plaintiff left home the Dodge was apparently in good running order. Before reaching Redding, however, he observed that the generator was not operating properly, and stopped at a garage in Redding, where he learned there was something wrong with the generator which could not be immediately repaired, so he had a rent battery installed. Upon reaching Willows plaintiff again observed that the battery was not operating properly and he then purchased and installed a new battery. From Willows he proceeded on his way, arriving at Woodland about 11:45 P. M., where the three stopped for supper. A few minutes after midnight, as they left the restaurant, preparatory to resuming their journey, they observed a stage of the Pacific Greyhound driving into the main depot in Woodland. Plaintiff proceeded without difficulty until he crossed the railroad track about four miles south of Wood
Appellants contend that the finding of the jury that defendants were negligent is not supported by the evidence;
James Smith, who testified he had driven a car for eight years and piloted an airplane for two years, estimated that the stage was traveling between 50 and 55 miles an hour at the time of the accident. Hunter testified the stage at •that time was traveling approximately 50 miles an hour.
Appellants contend that respondent’s witnesses would be unable to estimate the rate of speed on account of the fact that lights in a fog looked farther away and because of the fog the stage was much nearer to them than they realized. ’ This was a matter to be determined by the jury. Physical facts also bear out the estimate of respondent in regard to the speed of the stage in that it appears that the Dodge was forced ahead some 12 to 15 feet until it struck the truck, crushing the Dodge between the two. James Smith testified that when he parked the truck he set the brakes and put the gears in reverse. Notwithstanding that fact, the truck was impelled over 100 feet from where it originally stood, across the graveled shoulder into a ditch, over a bank, through a wire fence and into a field. It also appears that the stage, to have reached the point of the accident, must have traveled 7 miles in approximately 8 minutes, or at a rate of speed in excess of 50 miles an hour. The night was dark and a heavy wet fog hung over the valley. The driver of the stage testified he was traveling 25 miles an hour and at that speed it would require 58 feet for him
It is not the absolute speed at which a car is being driven that determines whether or not it is being operated at a reckless rate, but the condition and circumstances of the highway at the time must be taken into consideration. (Havens v. Loebel, 103 Cal. App. 209 [284 Pac. 676].) If, therefore, the driver of the stage was traveling at a rate of speed at which he could not bring his vehicle to a stop within his range of vision, and the condition of the highway was such that his brakes could not be applied with adequate force lest the stage skid into the car ahead, the jury would have been justified in believing that even 25 miles an hour was excessive. (Sec. 113 [a], California Vehicle Act; Huddy’s Automobile Law, vol. 3-4, p. 301.)
Appellants contend that the evidence shows that plaintiff was guilty of contributory negligence as .a matter of. law. Section 136 (a) of the California Vehicle Act provides :
“No person shall park or leave standing any vehicle whether attended or unattended upon the paved or improved or main traveled portion of any public highway, . . .
“The provisions of this subsection shall not apply to the driver of any vehicle which is disabled while on the paved or improved or main traveled portion of a public highway in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving such vehicle in such position.”
We are of the opinion that plaintiff comes under the exception set out in the last paragraph of section 136 (a) quoted above.
It would seem, also, that plaintiff exercised due care in regard to the supervision of his lights and battery. When he first discovered trouble with his car he stopped at Red-ding and installed a rent battery and was there informed that that installation would be sufficient to take him safely to San Francisco. In Willows he had the rent battery removed and there purchased a new battery. From that time until the lights flickered at the crossing south of Woodland he had no trouble. Then a short distance farther south, without warning, the lights went out and his engine stopped. He coasted along the shoulder of the highway and as far to the right thereof as he thought safe in the darkness until his car came to a stop, leaving 2% to 3% feet of the car extending on to the paved portion of the highway. He then alighted and proceeded to search for a light to examine the ear, and in less than two minutes and before he could take any precaution to protect himself or others, he was struck by the oncoming stage.
It is apparent, therefore, that plaintiff was forced to park his car on the main traveled portion of the highway, owing to its disabled condition, and whether he was justified in so doing under all the circumstances of the case was properly submitted to the jury.
In answer to the contention of appellants that respondent was negligent in that he .stood by the ear as the stage bore down upon him, is likewise for the jury, as the case of White v. Davis, 105 Cal. App. 531 [284 Pac. 1086], held: “When the injured party fails to look at all. or looks
Appellants also claim that the trial court erred in instructing the jury on the doctrine of last clear chance. The principles of this doctrine are clearly set forth, as follows in the case of Girdner v. Union Oil Co., 216 Cal. 197 [13 Pac. (2d) 915]:
“The necessary elements, as deduced from the well considered cases, may be stated in substance as follows: that plaintiff has been negligent and, as a result thereof, is in a position of danger from which he cannot escape by the exercise of ordinary care; and this includes not only where it is physically impossible for him to escape, but also in cases where he is totally unaware of his danger, and for that reason unable to escape; that defendant has knowledge that the plaintiff is in such a situation, and knows, or in the exercise of ordinary care should know, that plaintiff cannot escape from such situation, and had the last clear chance to avoid the accident by exercising ordinary care and fails to exercise the same, and the accident results thereby, and plaintiff is injured as the proximate result of such failure.”
Whether plaintiff was in a position of danger from which he could not escape was also a question of fact. Appellants assume that when the stage was 150 feet away plaintiff should have realized he occupied an exposed position and by the exercise of due care could have avoided the injury. However, merely to show that plaintiff knew of the existence of the instrumentality that subsequently caused his injury, without showing also that he then appreciated the peril, will not preclude his relying upon the doctrine of the last clear chance (20 R. C. L., p. 110), and such knowledge of the peril is to be established like any other fact. (20 R. C. L. 109; Giraudi v. Electric Imp. Co., 107 Cal. 120 [40 Pac. 108, 48 Am. St. Rep. 114, 28 L. R. A. 596].) Under the facts of this case it cannot be said as a matter of law that the approach of an autostage under the circum
Appellants also complain of an instruction. given on the doctrine of last clear chance; the instruction complained of reads in part as follows: “You are instructed that if you find from the evidence even though plaintiff in this case had negligently placed himself in a careless position, and that the defendant S. G-. Irwin, the driver of the stage, by the exercise of reasonable care, could have seen and should have seen the perilous situation of plaintiff in time to have avoided injuring him by the exercising of reasonable care ...”
It is true that the instruction complained of omitted to add the words “did see” after the words “should have seen”, nevertheless other instructions correctly set forth the principle of law involved. It is a well-settled rule that instructions on a particular subject must be construed as a whole (24 Cal. Jur., p. 857), and in other instructions given by the court the jury were instructed, “ . . . yet, if thereafter, defendants, seeing the position in which he was,
At most it can be said that tbe instruction complained of did not contain all tbe necessary elements of last clear chance doctrine, but it has often been stated that all the law applicable to a case need not be stated in a single instruction. (People v. Mohammed, 189 Cal. 429 [208 Pac. 963].)
It has also been held that if an instruction is desired by defendant more elaborate or complete upon the statement of the doctrine involved, it is the duty of defendant to prepare and present such fuller or more accurate instructions on the subject. (Townsend v. Butterfield, 168 Cal. 564 [143 Pac. 760]; Galwey v. Pacific Auto Stages, 96 Cal. App. 169 [273 Pac. 866].)
Appellants also claim prejudicial error in an instruction telling the jury that at the time of the accident the speed limit at the place where the accident occurred was 45 miles per hour and that it was a violation of the laws of the state of California for a motor vehicle to travel upon the highway at said time at a greater rate of speed than 45 miles an hour. The jury were nowhere informed in this instruction that if defendants violated such law at the time and place of the accident that such violation would constitute negligence. The instruction was therefore only a declaration of an abstract principle of law and a truism or general statement which had no specific bearing upon the case at issue.
We find no further objections which require consideration and the judgment appealed from is affirmed.
A petition by appellant 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 6, 1934.