21 P.2d 1009 | Cal. Ct. App. | 1933
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *682 We are in this opinion considering appeals from the verdict and the judgment for damages in the sum of $7,850 and costs in favor of all of the plaintiffs and against all of the defendants. The defendants Bowker join in appealing separately from defendant Dentman, who appeals separately and alone.
The damages were awarded for the death of Veronica Biehl, alleged to have occurred by reason of the negligence of defendants and appellants A.G. Dentman and Edward L. Bowker, in operating their automobiles. The verdict and judgment are also against defendants Walter K. Bowker and Harriet B. Bowker by reason of their statutory liability as the parents of Edward L. Bowker whose operator's license was issued on their application.
The plaintiff Conrad Biehl was the surviving husband, and the plaintiffs Henry Edwin Knechtel, Edna Idella Hilbert and Joseph Wesley Knechtel were the surviving children of the deceased Veronica Biehl.
[1] Without going into details we think there is substantial evidence to support the jury's determination that the negligence of both drivers proximately contributed to the tragedy. It is also true that had the jury found either one of the drivers solely to blame there was substantial evidence to support such a finding.
Both appellants claim there was reversible error in the court's instructions, but before we consider these claims we shall dispose of the other specifications of error.
Defendant Dentman assigns as error the refusal of the court to instruct the jury to return a verdict for him. In view of what we have just said it is clear that we think this specification without merit.
Defendant Dentman assigns as error the refusal of the trial court to grant him a new trial. For reasons that will hereinafter appear obvious we think this motion should have been granted.
[2] Defendants Bowker assign as error the court's refusal to permit an impeachment foundation. Mary L. Hull was a witness to the accident and was called as a witness for plaintiffs at the trial. She testified in part as follows: *684
"I observed the Essex immediately after I heard the crash and looked up. It appeared to me that the Essex was following the Ford. The Ford was swerving to the left. The Essex came in behind the Ford and went to the right curb. The Essex followed the Ford. It seems to me the Ford was going this way (indicating on map); the first I saw of the Essex it was going to the right of the Ford, and the Ford was on the two right wheels, going to the left. There was no speed to the Essex from the time I first observed it after the collision and the time it came to a stop." Upon cross-examination the witness was asked if the Essex "shot" behind the Ford and the court sustained the objection that the question was "improper". The cross-examiner then explained that he was seeking to lay a foundation for impeachment, and a record of the witness' testimony at the coroner's inquest as to the cause of the death was produced, from which it appears that the witness testified substantially as above quoted but she had used the word "shot" instead of the word "went" italicized by us for clarity. The court would not permit the laying of foundation for impeachment, apparently for the reason stated in the objection that the testimony at the inquest was the same as that given in the instant hearing. The court was probably right until the purpose of the original cross-examining question was explained. In the light of this explanation and in consideration of the great importance the rate of speed of each car bore to the question of proximate cause of the collision, we think the impeachment questions and procedure should have been allowed. The shade of difference in the word "went" as used in one instance and the word "shot" as used in the other, in description of the same event might have been very important. (Code Civ. Proc., sec. 2052, People v. Bushton,
We shall now turn our attention to the several assignments of error specifically concerning the court's instructions and shall first consider those of appellants Bowker.
[4] The court gave a number of instructions in which a specific speed is assumed or defined as the limit of a lawful speed. Appellants Bowker contend that this was error, that the California Vehicle Act does not fix any rate that is unlawful in civil matters and that "it is always the right of the jury to decide whether or not a given speed is reasonable under all of the circumstances surrounding an *687
accident". In view of the doctrine expressed in the opinion inBenjamin v. Noonan,
[5] These appellants complain that error was committed in the court's refusal to give several of their proffered instructions, but the law sought to be conveyed to the jury thereby, reached the jury through other instructions.
We shall proceed to discuss appellant Dentman's exceptions numbers 24, 27, 31, and 33, respecting the giving and the refusal to give certain instructions.
We do not understand that this instruction is in and of itself claimed as erroneous, but that it must be considered in connection with the others above noted.
[6] As to exception number 27, it is sufficient to say that the instruction refers to the matter of a boulevard stop and that appellant is mistaken in his assertion that the court did not define the expression "boulevard stop". Appellant in this connection asserts "That the uncontradicted evidence discloses that appellant, on reaching the intersection . . . brought his car to a stop before proceeding into the intersection." True, no witness testified that he saw this appellant (Dentman) drive into the intersection without *688 stopping and Dentman testified that he did stop. But this was not conclusive and did not preclude the jury from considering all of the circumstances of the collision that were presented to them in determining the truth of this important point.
[7] By this instruction the jury was told that if Bowker entered the intersection first then Dentman violated the right of way rule when he entered. Thus the right of way goes to Bowker without any requirement as to his legal speed. Bowker himself named the speed at which he approached and entered the intersection at a mileage greater than the law allows. Could it be said that he would still have the right of way? It would seem to us that a right of way is only for those who are themselves obeying the law. This instruction was erroneous.
Appellant points out that this instruction is to the effect that Bowker being on the right of Dentman, Bowker had the right of way unless Dentman entered the intersection first, under a legal rate of speed. In other words, the meaning of this instruction is that because Bowker was on the right he had the right of way unless (1) Dentman had entered the intersection first, and (2) was within lawful speed. It will be seen that there was no requirement whatever as to Bowker's speed. Our comment and ruling on the last preceding exception apply equally to this instruction.
[8] This case is one in which it seems to us that a confusion of instructions on the subject of right of way may well have confused the jury into determining actionable negligence through error of understanding as to the law.
To the argument that the quotation of the law in instruction 24 cured the defects pointed out in 31 and 33, we think there is a conclusive answer. The quoted law uses the expression "When two vehicles approach an intersection", whereas instruction 31 does not use the word approach at all but uses the term "entered the intersection;" instruction 33 speaks of Bowker's right of way because "Dentman was approaching from his left, still, if the defendant Dentman had entered the intersection prior to the time defendant Bowker reached the intersection, Dentman would have the right of way, and would not be guilty of negligence in attempting to proceed forward in said crossing provided that Dentman approached and entered said intersection at a lawful rate of speed." With the aid of our italicized words it will not require great concentration to appreciate the very different subjects treated in this instruction and the quoted law in instruction No. 24.
While we do not approve of the reversal of jury verdicts upon technical errors and do approve of the liberal application of section 4 1/2 of article VI of the Constitution, we think that since the proximate cause in this case must be determined by a very close analysis of the evidence and the instructions, the cause must be reversed as to each appellant. *690
The order in each appeal is: Judgment reversed, cause remanded for retrial.
Works, P.J., and Craig, J., concurred.
A petition by respondents to have case No. 7657 heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on July 7, 1933.
Curtis, J., dissented.