Opinion
Rehearing Denied May 19, 1931
Hearing Granted by Supreme Court June 29, 1931.
Appeal from Superior Court, Fresno County; K. Van Zante, Judge.
Action by E.C. Page and wife against R. Mazzei, also known as Romeo Mazzei. From a judgment for plaintiffs, defendant appeals.
Reversed.
COUNSEL
Christian Hoeppner and Wakefield & Hansen, all of Fresno, for appellant.
N. Lindsay South, of Fresno, for respondents.
OPINION
MARKS, J.
This is an appeal from a judgment for damages for personal injuries in the sum of $9,891.16, rendered after a verdict was returned in favor of the respondents. The action grow out of an automobile collision occurring on the 17th day of November, 1928, at the intersection of Clovis and Belmont avenues in Fresno county, Cal., in which Pauline W. Page, wife of E.C. Page, was seriously injured.
Clovis avenue runs north and south and is fifty feet in width between property lines with a pavement sixteen feet wide in its center. Belmont avenue runs east and west and intersects Clovis avenue at right angles. It is fifty feet in width and has an oiled strip in its center between eighteen and twenty feet in width. The tracks of the Southern Pacific Railway Company parallel Clovis avenue on its east side. There was a dense hedge of olive and palm trees directly east of the east side of the railroad right of way and also on the north property line of Belmont avenue which effectively obscured the view of motorists approaching the intersection from the east on Belmont avenue and from the north on Clovis avenue making it an obstructed intersection as defined by the California Vehicle Act (St.1923, p. 553, § 113 (b) 2, as amended by St.1927, p, 1436, § 30). The hedge paralleling the railroad right of way was sixty-one feet distant from the center line of Clovis avenue. The railroad tracks were two feet higher than the paved portion of Clovis avenue, with the center of the tracks twenty-eight feet easterly from the center of this avenue.
Shortly after 9 o’clock on the morning of November 17, 1928, respondents left their home on Belmont avenue, about a quarter of a mile east of the Clovis avenue intersection, and started on their way to the city of Fresno in a Buick automobile driven by E.C. Page. After he had passed the olive and palm tree hedge and when his automobile had about reached the railroad tracks, Mr. Page looked to his right for approaching vehicles and saw none. He looked to his left and saw an automobile approaching from the south at a distance of something over three hundred feet. He then proceeded on his way at a speed of approximately eight miles per hour, and when his automobile was on the paved portion of Clovis avenue with its front wheels about four feet from the west edge of the pavement it was struck on its right-hand side by the automobile driven by appellant. The impact threw the Page car to its left and Mrs. Page to the pavement, crushing one of her elbows and permanently injuring her. Neither of respondents saw appellant’s automobile until just before the impact.
Appellant and his wife testified that they were traveling south on Clovis avenue in a coupéat a speed of twenty-five or thirty miles an hour; that upon reaching the intersection this speed was reduced to fifteen miles per hour; that they did not see respondents’ car until just before the impact; that when they saw it appellant swerved his car to the right; and that respondents’ car ran into appellant’s car, striking it to the rear of its left-hand door.
The driver of the automobile which Mr. Page had seen approaching the intersection from the south was the only disinterested witness to the accident. He flatly contradicted the testimony of appellant and his wife. This witness testified that appellant approached and entered the intersection at a speed of between thirty and forty miles per hour and that his car ran into the right side of the Page car. The testimony of this witness and of respondents was further corroborated by marks made on the pavement by the rear tires of respondents’ car sliding to its left. Photographs of the two automobiles introduced in evidence strongly corroborated the testimony of respondents and the witness we have mentioned, to the effect that appellant’s car struck respondents’ car on its right-hand side. The jury was amply justified in concluding that respondents’ car did not run into appellant’s car and in disregarding the testimony of appellant and his wife upon this point.
It is admitted by both parties that there was a light fog on the morning of the accident. It was dense enough to wet the pavement and gather upon the windshields to such an extent that appellant had his windshield wiper working at the time of the accident. It reduced visibility so that objects were visible for only about four hundred feet.
Appellant urges two grounds for a reversal of the judgment. First he maintains that respondents were guilty of contributory negligence as a matter of law in the operation of their car prior to and at the time of the accident. He urges upon this court that it adopt as a general rule of law in automobile accident cases and apply to this case the following: "It is the duty of the operator of a motor vehicle before entering an intersection of public highways not only to look for cars approaching on the intersecting highway, but to look in such an intelligent and careful manner as will enable him to see things which a person in the exercise of ordinary care and caution for his own safety and the safety of others would see under like circumstances."
The second ground which he urges for a reversal of the judgment is that the court erred in giving an instruction.
In support of his argument under his first contention appellant cites the cases of Zibbell v. Southern Pacific Co., 160 Cal. 237, 116 P. 513, 517; Donat v. Dillon, 192 Cal. 426, 221 P. 193, 194; Hoy v. Tornich, 199 Cal. 545, 250 P. 565; Kinney v. King, 47 Cal.App. 390, 190 P. 834; Judd v. Webster, 50 Cal.App. 743, 195 P. 929; and McManus v. Arnold Taxi Corporation, 82 Cal.App. 215, 255 P. 755. He complains of the many decisions of the Appellate and Supreme Courts of this state involving questions of negligence and contributory negligence because they have been decided upon the particular facts surrounding each case instead of upon broad principles of law. While it might be advantageous to the legal profession and would create an ideal situation from a defense standpoint to be able to lay down a general rule of contributory negligence applying to all cases alike regardless of the facts surrounding them, we would find such a task as hopelessly impossible as to attempt to fit a single suit of clothes to every male inhabitant of the state of California. Negligence and contributory negligence always relate to the facts and circumstances of a particular case. Negligence is the doing of some act which an ordinarily prudent person would not do, or the omission to do some act which a like ordinarily prudent person would do under the circumstances of the case. Negligence relates to the time, place and circumstances of an event. What may be negligence under one set of circumstances may not be negligence under another.
That the respondents looked before entering the intersection is not questioned; that they did not see appellant’s car is admitted. That the visibility was poor at the time of the accident and the windshields of the cars were clouded with dampness, is asserted by both parties. "Even in this brief statement it must be apparent that this case differs radically from those where all of the other evidence contradicts the plaintiff’s testimony that he did look and listen, by establishing that, if he did look or listen, he must have seen or heard. *** It cannot serve to remove the case from the domain of questionable fact which is the jury’s province, to that of positive demonstration, where alone the law withdraws the consideration from the jury." Zibbell v. Southern Pacific Co., supra.
When we bear in mind the atmospheric conditions prevailing at the time of the accident, the low visibility caused by the fog and the windshields of the automobiles clouded with accumulated dampness together with the fact that Mr. Page looked in the direction in which appellant’s car was approaching and failed to see it, we have concluded that the question of his contributory negligence was one of fact and was properly left to the determination of the jury. Where the minds of reasonable men might differ upon the question of negligence or contributory negligence, or where reasonable men might draw different inferences from the undisputed evidence of a case, a question of fact is always presented which must be left to a jury and cannot be determined by a court. Zibbell v. Southern Pacific Co., supra; Donat v. Dillon, supra. To paraphrase the language used in the latter case: It was therefore a question for the trial jury to determine from all the evidence and the reasonable deductions therefrom whether Page exercised the due care and prudence which a reasonable man would have exercised under the circumstances. We cannot say that the jury reached an unreasonable conclusion in absolving him of contributory negligence, and we are bound by its finding of the ultimate facts which determined that appellant’s negligence was the proximate cause of the injury to Mrs. Page without the existence of contributory negligence on the part of her husband.
The facts in the case we are considering are quite similar to those in the case of Wynne v. Wright, 105 Cal.App. 17, 286 P. 1057, in which it was held that, under these like circumstances the question of contributory negligence of the plaintiff was one of fact to be determined by the jury and not one of law to be decided by the court. The cases of Kienlen v. Holt (Cal.App.) 288 P. 866, and Sites v. Howrey (Cal.App.) 291 P. 597, give further support to this conclusion.
The trial court gave the following instruction to the jury:
"You are instructed that the plaintiffs had a right to presume that the defendant would perform his duty and obey the law in approaching the said intersection.
"I instruct you that if you find from the preponderance of the evidence that plaintiffs and defendant approached the intersection at approximately the same time and you further find that plaintiffs had reached the center of said intersection driving at a lawful rate of speed and that defendant at approximately the same time reached the center of said intersection driving at an unlawful rate of speed, plaintiffs had a right to expect that defendant would allow plaintiffs to cross said intersection first."
This instruction contains several defects, only one of which it will be necessary for us to consider. It entirely leaves out of consideration the question of any contributory negligence on the part of the respondents which was made an issue in the case by the answer filed by appellant, and by the evidence introduced. It has been held repeatedly that while a motorist may to some extent rely upon the presumption that another driver would perform his duty and obey the law that "he must be ever alert and watchful, so as not to place himself in danger, and, while he may assume that others will exercise due care, he cannot for that reason omit any of the care which the law demands of him." Donat v. Dillon, supra. To the same effect are the cases of Truitner v. Knight, 83 Cal.App. 655, 257 P. 447; White v. Davis, 103 Cal.App. 531, 284 P. 1086; and Grimes v. Richfield Oil Co. (Cal.App.) 289 P. 245.
A somewhat similar instruction was considered in the case of McPherson v. Walling, 58 Cal.App. 563, 209 P. 209, in which the court said:
"At the request of plaintiff the court gave the following instruction: ‘The reasonable care which is required of persons using the public highways must be measured by the conditions and circumstances found to exist at the time and place in question. Each may rightfully expect that the other will, at the proper time, discharge his proper duties toward the other. He may not rely wholly on the care of others, nor on that account neglect to use the precaution which the particular situation demands of him. But he frequently must, to some extent, depend upon others in such situation, and his conduct must be considered in view of the facts determining whether or not there was negligence. His care, or want of care, in such matters is a matter to be determined by the jury from all the circumstances surrounding him at the time and place in question.’
"We think the giving of this instruction constitutes reversible error. The rule stated in the second sentence and to which recurrence is made in the fourth would disregard the doctrine of contributory negligence. The third sentence does not cure the vice of the instruction taken as a whole. We now proceed to a fuller discussion of these propositions.
"By the second sentence of the instruction the jury were told that the plaintiff had the right to expect that the defendant would at the proper time discharge his proper duties toward him, the plaintiff. This statement, standing alone, is not distinguishable from similar instructions which have been held erroneous in other cases. In Hutson v. Southern California Ry. Co., 150 Cal. 701, 89 P. 1003, the following statement and other language to the same effect in an instruction was held to be error: ‘The plaintiffs and each of them were authorized to assume that the men in charge of the train would approach the crossing with due care.’ Thompson v. Southern P. Ry. Co., 31 Cal.App. 567, 161 P. 21, is another case in which the same ruling was applied to a similar instruction."
We find no other instructions in the record which would tend to correct the errors in the instruction quoted. It contained all of the defects of the instruction in the McPherson Case, besides others. The evidence on the question of the contributory negligence of Mr. Page is close. Because of the evidence offered by respondents and this instruction given by the court below, the jury might easily have concluded that as the appellant was approaching and entered the intersection at a speed of more than fifteen miles per hour this fact alone relieved the respondents of the duty to use ordinary care and caution for their own safety and gave them the right to drive blindly into the path of appellant’s approaching car and to recover for any ensuing injuries.
After a careful examination of the entire record, we are unable to conclude that the giving of the instruction complained of was prejudicial error which may be disregarded under the provisions of section 4½ of article 6 of the Constitution of California.
Judgment reversed.
We concur: JENNINGS, Acting P.J.; LAMBERSON, Justice pro tem.