Opinion
Rehearing Granted Aug. 28, 1930.
In Bank.
Action by Norman Rogers against the Interstate Transit Company. Judgment for plaintiff, and defendant appeals.
Affirmed.
Superseding opinions of District Court of Appeal in 284 P. 499, 285 P. 731.
Appeal from Superior Court, Shasta County; Walter E. Herzinger, judge.
COUNSEL
Carter & Smith and Jesse W. Carter, both of Redding, Annette Abbott Adams, of San Francisco, and George Allan Smith, of Monterey, for appellant.
Carr & Kennedy, of Redding, for respondent.
Devlin & Devlin & Diepenbrock, of San Francisco, amici curiae.
OPINION
PER CURIAM.
A hearing in this court was granted for the reason that the supplemental opinion of the District Court of Appeal on rehearing in said court contained reference to and comment on a case then pending in this court, the decision in which had not then, nor has it since, become final; and for the further reason that the main opinion contained a discussion of the doctrine of last clear chance which was unnecessary to the opinion and which might well be eliminated. Upon a reconsideration of the main opinion of the District Court of Appeal we adopt the following portions thereof as the opinion of this court pro tanto (284 P. 499, 501):
‘This is an appeal from a judgment for damages for injuries sustained in an automobile collision.
‘At 1 o’clock p. m. on March 11, 1927, the defendant’s auto stage was being driven southerly alone a straight stretch of level highway in Shasta county between Anderson and Cottonwood. It was occupying more than half of the concrete portion of the roadway, and was traveling about 35 miles an hour. The plaintiff, who was an able-bodied man 30 years of age, and who had been employed by Mr. A. J. Loggie for 8 years as his automechanic and chauffeur, was driving his employer’s Packard limousine in the same direction. The owner of the Packard with a companion occupied the rear seat.
‘The concrete pavement was 15 feet wide with a 5-foot graveled shoulder sloping down to a shallow ditch on either side. At a point about 1 mile from Cottonwood the Packard car overtook the stage, and undertook to pass it on the proper side. The highway was unobstructed. No other machines were in sight. Several times the horn of the Packard was blown, and the plaintiff attempted to pass the stage, which failed to yield any portion of its position on the highway. Finally the plaintiff drove to the extreme left side of the roadway with about half of the machine traveling upon the graveled shoulder, and repeatedly sounded the horn as a warning in passing the stage. As the Packard reached a point opposite the front of the stage, the latter appeared to increase its speed. The Packard, however, succeeded in passing the stage, and for a considerable distance continued to keep its position on the extreme left side of the roadway. The defendant testified in this regard: ‘I never attempted to turn in (front of the stage) at all. I kept going at the same rate of speed I was going while I was passing it.’ On redirect examination he said: ‘I turned slightly on the pavement, following the left side, driving straight ahead.’ The machines were running about 35 miles an hour. There is a serious conflict of evidence as to just how the accident occurred. The appellant contends that the plaintiff cut in front of the stage, hooking his rear right fender over the left end of the stage bumper, and thus diverted the course of the Packard from the highway into the ditch upon the right. There is, however, ample testimony to support the plaintiff’s theory that, after he had passed the stage and was proceeding along his proper side of the highway, the stage increased its speed and struck the Packard. The left angle of the stage bumper hit the rear right fender of the Packard, back of the wheel. The impact crumpled the mud guard, and shoved the rear end of the car violently to the left. The plaintiff lost control of the machine, and it pitched diagonally across the highway in front of the stage into a telephone pole on the right side of the highway, cutting down the pole, upsetting and wrecking the Packard, and hurling the plaintiff from the car to the ground. The plaintiff’s left foot, which was caught between the clutch pedal and the brake lever, was nearly torn off. He was taken to the hospital at Cottonwood, where his foot was amputated above the ankle. He is now forced to wear a cork foot and limb, to his great inconvenience, discomfort, and humiliation. The jury rendered a verdict in his favor for the sum of $20,000. A judgment was duly entered for this amount, from which an appeal was perfected.
‘The appellant asserts that: (1) The judgment is not supported by the evidence; (2) the plaintiff was guilty of contributory negligence; (3) the court erred in giving and refusing certain instructions; and (4) the amount of the judgment was excessive.
‘There is substantial evidence to support the judgment. Three witnesses testified to substantially the foregoing statement of facts.
‘The appellant contends that the plaintiff was guilty of contributory negligence in attempting to cut in ahead of the stage, and that in so doing the right rear fender of the Packard hooked over the left end of the front bumper of the stage, and caused the Packard to be shunted to the right diagonally across the highway in front of the stage. The implied finding of the jury that this was not true finds ample support in the evidence. A physical inspection of the fender in question discloses no evidence that the bumper was hooked in behind it, or that the fender was drawn out by such a forcible pull as would have resulted under such circumstances. On the contrary, it appears reasonable to conclude that the fender may have been indented by a severe blow from the bumper of the stage. This accords with other corroborating testimony. It is possible the indentation in the Packard fender may have been caused by its cutting in and striking the stage bumper. Either theory of the cause of the accident is reasonably possible. We are therefore bound by the findings of the jury in this regard.
‘The portion of the highway upon which the stage was traveling at the time of the accident is material in determining the question of defendant’s negligence. Mr. Purdy testified in this regard: The stage was right over, I would say, in the middle of the highway.’ On cross-examination he said: ‘I would say that there was probably five feet between the stage and gravel (on the left side). * * * I looked out and saw that we cleared the stage and were by the stage, and all at once this (stage) hit us.’ Mr. Loggie testified regarding the same subject: ‘I would say that (the stage) had at least two-thirds of the pavement.’ The portion of the highway upon which the Packard traveled after it succeeded in passing the stage is also important in determining whether the plaintiff was guilty of contributory negligence. Reading the record as a whole, it seems improbable that the Packard passed to the right of the central line of the highway prior to the occurrence of the collision. At least there is ample testimony to support the theory that it did not do so, and upon the contrary that the stage continued to travel with a portion of the vehicle upon the wrong side of the highway. Regarding the relative positions in which these two machines traveled upon the highway and the circumstances incident to the accident, Mr. Loggie testified:’ Here follows a recital of testimony, unnecessary to be repeated, in support of the conclusion contained in the next paragraph, as follows:
‘The foregoing testimony sustains the implied finding of the jury that the stage driver was guilty of negligence in violating the provisions of section 126 of the California Vehicle Act (St. 1923, p. 558), which proximately caused the accident. It is apparent that, if the stage was traveling with a portion of the vehicle on the left side of the concrete without changing its course after the Packard succeeded in passing it, and that its speed was then accelerated so that it overtook the Packard traveling on its proper side of the highway, and struck the fender with such force as to divert the course of the Packard, hurl it into the ditch, and cause the injuries sustained by the plaintiff, this conduct on the part of the stage driver would amount to actionable negligence and render the defendant liable for damages which resulted therefrom. The evidence will sustain this theory of the accident.
‘For the foregoing reasons, the evidence will also support the implied finding that the plaintiff was not guilty of contributory negligence.
‘Considering the pain, the discomfort, inconvenience, and humiliation on account of the loss of plaintiff’s foot and the consequent necessity of going through life with an artificial limb, we are of the opinion that the amount of the judgment was not excessive. * * *
‘It is insisted that it was error to instruct the jury as follows: ‘The burden is upon the defendant to prove the negligence of plaintiff by a preponderance of the evidence, and in considering the evidence upon this point you will keep in mind that the law presumes that plaintiff, at the time in question here, took ordinary care of his own concerns.’ This amounted to a charge to the effect that the jury could take into consideration with all the other evidence adduced, in determining whether the plaintiff was guilty of contributory negligence, the presumption created by the provisions of subdivision 4 of section 1963 of the Code of Civil Procedure that ‘a person takes ordinary care of his own concerns.’ This is held by statute to be a disputable presumption. Presumptions are declared by section 1957 of the same Code to be evidence. This presumption is therefore entitled to be weighed and considered by the jury, together with all other evidence upon the subject in determining that issue. The question as to whether this presumption has been rebutted by other evidence is a problem for the jury to determine. Davis v. Tanner, 88 Cal.App. 67, 262 P. 1106; Olsen v. Standard Oil Co., 188 Cal. 20, 25, 204 P. 393. This instruction was therefore not erroneous. This construction is statutory. We are cited to no case where similar statutes have been otherwise construed. Weighed against actual testimony which is adduced upon the same subject, disputable presumptions are of slight value. Since our statute makes all presumptions evidence, it would be inconsistent to hold that it could be considered as such only in the absence of all other evidence.
‘The only instruction offered on the doctrine of the last clear chance to avoid an accident is assailed as inapplicable to the facts of this case and as erroneous, for the reason that two necessary elements are omitted from the hypothesis of the charge, to wit, that the plaintiff was unable to extricate himself from the peril, and, upon the contrary, that the defendant was aware of plaintiff’s danger; that he was able to prevent the accident, and failed to do so. This instruction reads:
"As the court has already stated, the claim is made by defendant that plaintiff was guilty of contributory negligence. The court instructs you that although it appears to you that the contributory negligence of plaintiff was one of the proximate causes of his injuries, yet if the defendant’s agent having charge of the stage, perceived that the plaintiff, by his own negligence, had placed himself in a position of peril from which he probably could not escape, and if perceiving plaintiff’s perilous condition (he) failed to exercise ordinary care and prudence to avoid injuring the plaintiff and such neglect was also a proximate cause of plaintiff’s injuries, he is entitled to recover.’
‘The doctrine of the last clear chance applies when one is in imminent peril, but in the exercise of ordinary care is ignorant of the danger (Hoy v. Tornich, 199 Cal. 545, 553, 250 P. 565), or, knowing of the danger, is unable to extricate himself, and, upon the contrary, the accused is aware of the danger to the complainant and by the use of ordinary care may avoid injuring him, but fails to do so (Basham v. Southern Pacific Co., 176 Cal. 320, 168 P. 359; Chappell v. San Diego Ry. Co., 201 Cal. 560, 258 P. 73).’
On the plaintiff’s theory of the case, based on sufficient evidence in support thereof, the doctrine of the last clear chance was applicable to the facts. But it is contended that the foregoing instruction was lacking in two elements necessary to the application of the doctrine, viz., that ‘the driver of the bus could, by the exercise of ordinary care, have avoided the accident after he observed plaintiff in a position of peril, and that plaintiff himself exercised ordinary care for his own safety after he found himself in a position of peril.’ The first element was in substance included in the instruction. The second element might well have been included, but the instruction as a whole was more elaborate and complete than the statement of the doctrine involved in Townsend v. Butterfield, 168 Cal. 564, 143 P. 760, which was held not to be prejudicial, especially since it was the duty of the defendant to prepare and present a fuller and more accurate instruction on the subject if it desired a better definition of the rule. See, also, Galwey v. Pacific Auto Stages, 96 Cal.App. 169, 273 P. 866; 14 R. C. L. § 56, p. 797.
Other instructions are complained of. The charge to the jury was full and fair, and we find no prejudicial error therein; nor does it appear that the plaintiff in his argument to the jury overstepped the bounds or propriety to such an extent as to constitute prejudicial misconduct, particularly in view of the admonition of the court with reference thereto.
The judgment is affirmed.