Opinion
Rehearing Granted Dec. 19, 1930
Appeal from Superior Court, City and County of San Francisco; Louis H. Ward, Judge.
Action by James J. Beatty against Albert McGuirk and others. Judgment against defendant named and in favor of defendants Edward M. Wiegmann and the Lewald Coal Company, and plaintiff appeals.
Judgment modified, and, as modified, affirmed.
COUNSEL
Hubbard & Hubbard, of San Francisco, for appellant.
Cooley, Crowley & Gallagher and Cooley & Crowley, all of San Francisco, for respondents.
OPINION
BURROUGHS, Justice pro tem.
A judgment in the sum of $2,336, together with costs, was entered in favor of the plaintiff and against the defendant Albert McGuirk. A judgment was entered in favor of the defendants Edward M. Wiegmann and Lewald Coal Company, a corporation, and against the plaintiff, for the costs incurred in this action by the two last-named defendants. From the judgment in favor of the latter defendants, the plaintiff appeals. The cause of action arose out of an automobile accident which occurred at the northeast corner of the intersection of O’Farrell and Larkin streets in the city and county of San Francisco. It is the contention of the appellant that, under the facts found, amplified by an examination of all the evidence, the court erred in the conclusion that the proximate cause of the injuries received by plaintiff was the sole negligence of the defendant McGuirk and in absolving the defendants Wiegmann and Lewald Coal Company, a corporation, from all blame as proximately contributing to said injuries.
The court found that O’Farrell and Larkin streets in San Francisco are public thoroughfares and intersect at right angles; that O’Farrell street runs easterly and westerly and Larkin street runs northerly and southerly; that each of said streets from curb to curb at said intersection are 44 feet and 9 inches wide; that a single track street car line runs along O’Farrell street through said intersection; that running through said intersection on Larkin street is a double track street car line; that the distance from the northerly rail of said O’Farrell street track to the northerly curb of O’Farrell street is 19 feet and 8 inches; that at the time of the accident plaintiff was walking southerly on the sidewalk on the easterly side of Larkin street towards the intersection of Larkin and O’Farrell streets; that about the time plaintiff arrived at the northeasterly corner of Larkin and O’Farrell streets, and before he had stepped from the sidewalk, defendant McGuirk drove a Dodge automobile in an easterly direction along O’Farrell street, through the intersection above referred to; that at said time and place McGuirk drove said automobile at an excessive, dangerous, and unlawful rate of speed, to wit, at a speed of approximately 30 miles an hour; that a very short time after Wiegmann drove a certain Ford automobile in a northerly direction along Larkin street and into said intersection at a careless, dangerous, and unlawful rate of speed, to wit, at a speed of approximately 25 miles an hour; that defendant Wiegmann did not see the automobile driven by defendant McGuirk until after both of said automobiles had entered into said intersection and until a passenger in said Wiegmann’s car shouted to him; that, for the purpose of avoiding a collision between said automobiles, defendant McGuirk swerved to his left from about the center of said intersection over to the northeasterly corner of said intersection and partly on to the sidewalk; that the left front wheel of said automobile struck plaintiff’s right foot, inflicting injuries upon the person of plaintiff; that, when defendant Wiegmann saw the automobile of defendant McGuirk as aforesaid, Wiegmann swerved his automobile in said intersection to the right; this was done for the purpose of avoiding a collision with defendant McGuirk’s automobile; that both of said automobiles for a space ran in parallel courses in a northeasterly direction, with their running boards not more than 12 inches apart; in swerving to the right, defendant Wiegmann drove his Ford in such a manner that the left front wheel of his said car crossed and ran to the north of the northernmost rail of the street car track on O’Farrell street; defendant Wiegmann succeeded in turning to his right and going easterly on O’Farrell street without bringing his automobile into collision with that of the defendant McGuirk, or with the plaintiff’s body; that there was sufficient space between the left side of said Wiegmann’s automobile and the northerly curb line of O’Farrell street for defendant McGuirk to have driven down O’Farrell street in an easterly direction, but on the wrong side of O’Farrell street, without running upon the sidewalk and injuring plaintiff as aforesaid; that said accident happened very suddenly; that the space between the left side of said Ford and the northerly curb of O’Farrell street was not more than a few feet, that is, 5 or 6 feet, wider than the width of McGuirk’s automobile; that each automobile is approximately 5 feet wide. The court further found that Wiegmann was employed by the Lewald Coal Company, a corporation, and at the time of the accident was acting within the scope of his employment; that plaintiff’s damage by reason of said accident is the sum of $2,336; that at the time of the accident Wiegmann intended to proceed directly across O’Farrell street in a northerly direction and defendant McGuirk intended to proceed directly across Larkin street in an easterly direction; that each of the defendants changed the course of his automobile solely for the purpose of avoiding a collision with each other; that the plaintiff exercised reasonable care for his own safety and was not guilty of contributory negligence. From the said findings, the court concluded that the defendant McGuirk was guilty of negligence in driving his automobile at an excessive, unlawful, and dangerous rate of speed and upon the sidewalk and into collision with plaintiff; that defendant Wiegmann was also guilty of negligence in driving his automobile at an excessive, dangerous, and unlawful rate of speed; that defendant McGuirk had the right of way through the intersection of O’Farrell street because of the fact that he entered the intersection before defendant Wiegmann; that, because of the employment of Wiegmann by the Lewald Coal Company and because Wiegmann was in the performance of his duty, his negligence was imputable to the said coal company; that the proximate cause of the injuries to plaintiff was the negligence of defendant Albert McGuirk as set forth in the findings; that the negligence of the other defendants did not contribute as a proximate cause of the plaintiff’s injuries, because defendant McGuirk could have driven between the Ford automobile operated by Wiegmann and the northerly curb of O’Farrell street without running upon the sidewalk and without injuring plaintiff. The court then ordered judgment for plaintiff and against McGuirk, and denied relief against the other defendants, and gave the latter judgment for their costs.
Appellant claims that under the findings the court should have concluded that all three of the defendants should be held responsible as the proximate cause of plaintiff’s injuries; that the mere fact that there was a space between the curb line on O’Farrell street and the car driven by Wiegmann through which McGuirk might have driven his car without running on the sidewalk does not constitute an intervening cause that would relieve Wiegmann and the Lewald Coal Company from their negligence. In Hill v. Jacquemart, 55 Cal.App. 498, 203 P. 1021, 1022, it is held that "the proximate cause of an injury is the efficient cause; *** the moving influence." In Merrill v. Los Angeles Gas & Elec. Co., 158 Cal. 499, 111 P. 534, 31 L.R.A.(N.S.) 559, 139 Am.St.Rep. 134, the proximate cause of an injury is epitomized in the syllabus as follows: "An independent wrongful act, to constitute the proximate cause of an injury, by displacing the original primary cause, must be so disconnected in time and nature as to make it plain that the damage occasioned was in no way a natural or probable consequence of the original wrongful act or omission." What was the efficient cause, the moving influence in the series of events which led to plaintiff’s injuries? Under the court’s findings there can be but one answer to this question— the excessive, dangerous, and unlawful rate of speed at which both McGuirk and Wiegmann were driving their cars and which caused them, for the purpose of avoiding a collision with each other, to swerve their cars, Wiegmann’s to the right so that he turned into O’Farrell street, crossed the center line thereof and then brought his car to the right side and stopped; the defendant McGuirk drove his car in a northeasterly direction to the northeast corner of Larkin and O’Farrell streets, where his car went on the sidewalk and injured the plaintiff. We think the foregoing shows without further elaboration that the primary cause of the accident was the negligence of both McGuirk and Weigmann. Having fixed the conduct of both Wiegmann and McGuirk as the original primary cause of the injury, was there any independent wrongful act that displaced the original primary act as the proximate cause of the injury? It is claimed by the respondent that the finding of the court that "there was sufficient space between the left side of said Ford automobile and the northerly line of O’Farrell street for McGuirk to drive on down O’Farrell street in an easterly direction and on the wrong side of O’Farrell street without running upon the sidewalk and injuring plaintiff as aforesaid" establishes that Wiegmann was not responsible for the injury to plaintiff and must be so accepted by this court. The trial court having made the finding, and it not being attacked as not supported by the evidence, it is binding as a fact, but as to whether it is a new and independent act that relieves Wiegmann and the Lewald Coal Company from its original responsibility to plaintiff must be determined by this court.
After examining the authorities, we are satisfied that, notwithstanding the finding of the court that the defendant McGuirk could have driven between the Ford car and the northerly curb of O’Farrell street without running on the sidewalk and without injuring plaintiff, Wiegmann, and hence his employer, the Lewald Coal Company, are responsible with McGuirk to the plaintiff for the latter’s injury, and that there was no intervening cause that relieved either of responsibility. We believe the following decisions are in point and sustain the above view.
In Keiper v. Pacific Gas & Electric Co., 36 Cal.App. 362, 172 P. 180, 182, defendant Elkus left his car unattended, parked across the street railway track. While in that position it was struck by a street car and catapulted in a diagonal direction from 50 to 75 feet, striking and injuring plaintiff, who was on the sidewalk. The street car was traveling at a good rate of speed, but under such circumstances that the servant of the street car company should have seen the automobile. Judgment was for plaintiff against defendant Elkus, who is the appellant; the claim being made that neither the complaint nor the proofs disclosed that the appellant’s negligence was the proximate cause of the accident and injury complained of. Defendant Elkus admitted negligence, but claimed that the negligent act of the operator of the street car was an active intervening cause of the accident and that negligence on his part ceased the instant that the street car negligently struck his automobile.
The court said: "If it was negligence to leave and allow the automobile to remain standing on the street car tracks in the first instance, upon what logical hypothesis may it be said that that negligence did not continue until the accident and injury which the collision of the car with the automobile produced? *** It is, of course, obviously true, as counsel declare, that but for the negligence of the defendant electric company the accident and its disastrous result would not have happened. But it is equally obvious that the damage suffered by the plaintiff would not have been produced but for the negligence of the appellant. Thus it is clear that the case as presented is essentially and peculiarly one where the injury complained of was produced by the concurrence of two separate, distinct and independent acts of negligence on the part of two separate and different persons. In other words, it is a case where the injury could not and would not have been produced by the act only of one of the two tort-feasors. *** Hence it cannot logically be said that the negligence of the appellant was not ‘an active, continuous, contributing cause, and therefore at least a necessary element of the proximate cause of the injury.’ Spear v. United Railroads, 16 Cal.App. 659, 117 P. 956. In such a case both parties through whose direct joint agency the injury has been sustained are joint tort-feasors and may be sued either jointly or separately." In Springer v. Pacific Fruit Exchange, 92 Cal.App. 732, 268 P. 951, 954, defendant John Franzoia who had previously parked his Peerless automobile off the paved portion of the highway and headed west; was attempting to enter the paved road from the north side and continue westerly. A Buick car driven west by Ritchie, employee of Pacific Fruit Exchange, was approaching from the east on the north half of the 18-foot pavement. At the time the Peerless and Buick came together, both machines were moving, the Peerless slowly, the Buick very fast. The Peerless’ left front wheel and fender came in contact with the right front wheel and fender of the Buick. The Buick, after colliding with the Peerless, went in a southwesterly direction across the highway 30 or 40 feet, and collided with a stage parked entirely off the pavement, then veered back to the middle of the pavement and at a distance of 30 or 40 feet further on veered south and hit a Franklin car traveling easterly on the south half of the pavement. The Franklin was overturned, and plaintiff riding in the Franklin was injured. Plaintiff dismissed the action against the Pacific Fruit Exchange, owners of the Buick car, and proceeded against Franzoia, owner of the Peerless, and a jury returned a unanimous verdict in favor of Franzoia. Plaintiff was granted a new trial. The appeal was from that order. The appellate court affirmed the order granting a new trial on the ground that "there is substantial evidence in the record to support a finding that plaintiff was injured by the concurrent negligence of both appellant and Ritchie." The court says: "In order that the independent negligence of Ritchie might constitute the sole proximate cause of the injury to plaintiff, and displace the original negligence of appellant, it must appear from the evidence that Ritchie’s negligence was so disconnected in time and nature as to make it plain that the damage occasioned was in no way the natural or probable consequence of the original negligence of appellant. Therefore, how far the Buick car might go after it collided with the Peerless before the driver would be chargeable as an independent actor would also be a question of fact."
In commenting on the facts the court says: "If Ritchie had been traveling at a lawful rate of speed and had his car under control, he could have avoided the collision with the appellant. On the other hand, if appellant, when he approached the paved portion of the highway, had looked in the direction from which the traffic was coming, he would have seen the approaching Buick and could have waited until it passed him, and thus have avoided the collision.
"The court or jury would therefore be warranted in saying that appellant and Ritchie were both negligent and that their concurrent negligence caused the collision between their two cars. This being true, the appellant would be a participant in whatever injury might reasonably follow from his negligent acts. The Peerless deflected the Buick from its course, and as the Buick veered from one side of the road to the other it finally came in contact with the Franklin and caused the injury to plaintiff. *** If plaintiff was injured by the concurrent negligence of both appellant and Ritchie then each is and both are the proximate cause of her injuries, and she may recover from either or both at her election."
In Hansen v. Bedell Co., 126 Or. 155, 268 P. 1020, where an automobile approaching an intersection was so negligently driven as to cause another automobile approaching from his right to swerve and thereby injure a pedestrian who was on the sidewalk, it was held that the first driver was not relieved of liability because the second driver may not have used due care and caution to avoid striking the pedestrian. Other authorities to the same effect are 19 Cal.Jur. 573; Hansen v. Market St. R.R. Co., 64 Cal.App. 426, 221 P. 955; Spear v. United R.R., supra; Merrill v. Los Angeles Gas & Elec. Co., supra; King v. San Diego Electric Ry. Co., 176 Cal. 266, 168 P. 131; Lotesto v. Baker & Henikoff, 246 Ill.App. 425; Schilling v. Hayes, 55 Cal.App. 1, 202 P. 680; Hill v. Jacquemart, supra.
Under the head of proximate cause, the defendants have cited a large number of authorities as supporting their position that the question of proximate cause in the instant case rested solely with the trial court. They cite Bancroft-Whitney Co. v. McHugh, 166 Cal. 140, 134 P. 1157; Stohlman v. Martin, 28 Cal.App. 654, 152 P. 319; Metzler v. Los Angeles R.R. Corp., 99 Cal.App. 656, 279 P. 190; Off v. Crump, 40 Cal.App. 173, 180 P. 360; Newman v. E.E. Overholtzer Sons’ Co., 182 Cal. 778, 190 P. 175; Milwaukee & St. Paul R.R. Co. v. Kellogg, 94 U.S. 469, 25 L.Ed. 256, also many other cases to the same effect.
We are of the opinion that the cited cases do not apply to the instant case. Here the trial court has found facts as above stated that place the original primary cause of the accident on all three defendants; this being true, was there any independent intervening cause that relieved the defendants or either of them from responsibility? In the reply brief of respondents it is admitted that there was no "intervening cause." They also admit that the doctrine of "last clear chance" has no application. We are satisfied that the proximate cause of the injury received by the plaintiff was the concurrent negligence of all three defendants, and the court was in error in releasing the defendants Wiegmann and the Lewald Coal Company from liability.
It is well settled in cases of this class that this court may amend the conclusions of law and enter a proper judgment. 2 Cal.Jur., § 587, p. 990; section 956a, Code Civ.Proc. It is therefore ordered that the court’s conclusion of law No. 6 be amended to read as follows: "The proximate cause of the injuries complained of by the plaintiff was the concurrent negligence of the defendants, Albert McGuirk, Edward M. Wiegmann, and Lewald Coal Company, a corporation, as in these findings and conclusions set forth. Plaintiff is entitled to judgment against said Albert McGuirk, Edward M. Wiegmann, and Lewald Coal Company, a corporation, in the sum of $2,336 and for plaintiff’s costs."
The conclusion of law No. 7 is hereby amended to read as follows: "Let judgment be entered in accordance with these findings and conclusions."
The judgment herein is amended to read as follows:
"Judgment.
"The court having made and filed herein its findings of fact and conclusions of law, judgment is hereby rendered in favor of plaintiff, James J. Beatty, and against the defendants, Albert McGuirk, Edward M. Weigmann, and Lewald Coal Company, a corporation, for the sum of $2,336 and for plaintiff’s costs herein in the sum of $______."
As thus modified, the judgment is affirmed.
We concur: NOURSE, P.J.; STURTEVANT, J.