Opinion
Rehearing Denied Feb. 21, 1930
Hearing Granted by Supreme Court March 20, 1930
Appeal from Superior Court, Shasta County; Walter E. Herzinger, Judge.
Action by Norman Rogers against the Interstate Transit Company, a corporation. Judgment for plaintiff, and defendant appeals. Affirmed. COUNSEL
Jesse W. Carter, of Redding, and Annette Abbott Adams, of San Francisco (George Allan Smith, of Monterey, of counsel), for appellant.
Carr & Kennedy, of Redding, for respondent.
OPINION
R.L. THOMPSON, J.
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 along 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 auto mechanic 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: "We had two wheels on the gravel and two wheels on the right side of our car on the pavement. *** We passed the whole stage. *** As our car got up toward the front of the stage the stage seemed to me to speed up as though they didn’t want us to go by. *** Q. When the Packard (had) passed it *** you say the stage struck the Packard in the rear? A. Yes, sir. *** The Packard had an impact and swerved to the right."
Mr. Purdy also testified: "The stage was right over, I would say in the middle of the highway. *** Rogers pulled over on the dirt, with two wheels on the dirt and two wheels on the pavement, running close to the stage. *** The stage seemed to speed up after we got right up *** (to the) front of it. *** I was sitting where I could see the whole proposition. *** What I presume happened (was that) the stage driver attempted to go by. *** This stage hit us in the rear of our car. *** The minute it did the (Packard) car turned right straight across the road and over it went." The plaintiff testified: "I was following the stage for quite a ways there and we came to this straightaway and I blew my horn to pass the stage and he wouldn’t move over to give me my half of the pavement, so there were good shoulders there and a straight road and no cars coming, so I attempted (to pass the stage). *** I got up opposite the driver. He saw that I was passing him and he speeded up, so I speeded up then and got ahead of him, got in the clear and all of a sudden something seemed to push my car straight across the road in front of the stage and I had no control over it at all. *** Q. Did they move over to the right to allow you to pass? A. No. *** Q. You say that when the Packard passed the stage you felt as if there was a force turning your car to the right? A. Yes. *** I know it wasn’t hooked over or (on) the bumper (of the stage), or the fender would have been straightened out. *** Q. After you passed the stage did the Packard stay on the left-hand side of the pavement? A. Yes, I never attempted to turn in at all. *** I kept going at the same rate of speed that I was going while I was passing it."
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.
The appellant challenges the following instruction which was given to the jury at the request of the plaintiff as erroneous:
"It was the duty of both parties at all times to operate their machines with ordinary care and with due regard to other traffic upon the road; if the plaintiff, while driving at a lawful rate of speed, gave a signal of his desire to pass defendant’s bus, and if the driver of defendant’s bus heard, or by the exercise of ordinary care could have heard said signal, or if the driver of defendant’s bus saw, or by the exercise of ordinary care could have seen that the car driven by the plaintiff was about to overtake his bus, then it was his duty to give way to the right in favor of said overtaking vehicle, and not to increase his speed until completely passed by the car driven by plaintiff, and also to exercise reasonable care not to injure the plaintiff; and if defendant was negligent in that respect and such negligence was the proximate cause of plaintiff’s injuries and the plaintiff was not negligent, then the plaintiff is entitled to recover."
It is asserted this instruction is inapplicable to the facts of the present case; that upon the authority of City of Sacramento v. Hunger, 79 Cal.App. 234, 249 P. 223, the defendant is not liable for failure to give way to his right in favor of a passing vehicle, unless he has actual knowledge of the desire and effort on the part of the overtaking vehicle to pass, and that the defendant’s failure in this regard was in no way the proximate cause of the accident.
This instruction is not erroneous. If by the exercise of reasonable care the driver of a vehicle should see or hear the approach of an overtaking machine which lawfully undertakes to pass, the driver of the former vehicle would be just as guilty of negligence which resulted in his failure to comply with the provisions of section 126 of the California Vehicle Act as though he actually saw or heard the approaching machine and deliberately failed to comply with the law. One may not shut his eyes or close his ears to the dangers of traffic on a public highway and thus excuse the result of carelessness or inattention. The dangers attending the use of motor vehicles on a public highway demand constant vigil, great caution, and the alert exercise of one’s senses of sight and hearing. In the present case it appears that the driver of the stage had actual knowledge of the presence and desire of the plaintiff to pass his vehicle, at least when the Packard reached a point opposite the driver of the stage. Yet the stage driver, instead of complying with the statute, then increased his speed, and evidently attempted to prevent the Packard from passing.
It is claimed the foregoing instruction is defective and misleading, for the reason that it does not include the provision that the driver of a vehicle must give way to a passing vehicle only when he may safely do so, and that this exception to the general rule was a necessary element under the circumstances of the present case, since there was a culvert and concrete railings bordering the roadway, a distance of 20 feet on either side, near where the accident occurred, which increased the danger of turning out for the Packard to pass.
It was not error to omit this qualification. It was not requested by either party. The evidence shows there was a clear space of 20 feet on the highway between these railings. This was ample room for the machines to pass. Moreover, the culvert was not reached until after the Packard had passed the stage. The plaintiff testified in this regard: "I was passing the stage before we got to the viaduct and just before we went over the viaduct I was in the clear. *** Q. How far did you travel after that before the stage came in contact with you? A. Well, I should judge about 100 to 150 feet the other side of the viaduct." It was 185 feet from the culvert to the telephone pole which wrecked the Packard machine. Moreover, the jury was charged that all persons must drive a motor vehicle on the public highway with "due regard to the traffic, surface and width of the highway," and that a judgment could not be rendered against the defendant, unless its negligence was the proximate cause of the accident. Fairly construed in the light of the evidence, this challenged instruction must be understood to mean that it was not only unlawful for the driver of a vehicle on a public highway to fail or refuse to permit another machine operating lawfully to pass upon the giving of proper signals for that purpose, but also that it was equally unlawful for the driver of the first vehicle to increase its speed until the passing vehicle was completely and safely by. Two distinct offenses are included in this section of the statute. Either may become the basis of an action for damages, provided its violation becomes the proximate cause of the injuries sustained. In the present case it was the violation of the latter portion of this section which caused the accident. The defendant’s failure to give way to the right and upon the contrary holding the position of the stage which was traveling partially on the left side of the pavement while he increased the speed of the stage so as to cause a collision with the Packard car would clearly be a violation of the statute which would create a liability for damages resulting therefrom. It was solely the province of the jury to determine whether the conduct of the driver of the stage was the proximate cause of the accident. There is nothing in the case of City of Sacramento v. Hunger, supra, in conflict with the foregoing statement of the law.
An instruction was given regarding the presence of a mirror in all vehicles which are operated upon the highway. It was given to the jury in the language of section 97 of the California Vehicle Act, and was applicable to the facts of this case, since the stage driver asserted he did not know the plaintiff was trying to pass the stage. The requirement that all machines be equipped with a mirror is for the purpose of imparting knowledge to the driver of the condition of the traffic in the rear of his machine. This instruction was not erroneous.
The appellant also charges error in refusing to instruct the jury pursuant to section 2100 of the Civil Code that the defendant as a carrier of passengers for hire was required to exercise the utmost care and diligence for the safety of its passengers. It is claimed this statute should be considered in determining whether the driver of the stage was negligent in failing to turn out for the Packard to pass. This refusal was not error. We are unable to see the application of this principle to the facts of the present case. A carrier of passengers for hire may not be permitted to plead extraordinary care due to one class of persons as a defense to a charge of a lack of ordinary care which is due to another class. The utmost care for the safety of the passengers of a common carrier will not justify a lack of ordinary care toward others. Nor will it justify the violation of a statute governing the uniform operation of all motor vehicles on the public highway. The highway was level, straight, unobstructed by traffic, and 25 feet in width, including the gravel shoulders, which were in good condition and safe to travel upon. There was ample room for the stage to travel on its proper side of the highway without danger to its passengers. This instruction was therefore inapplicable.
Plaintiff’s instruction regarding the burden of proof, when taken as a whole, is not erroneous or misleading. The appellant complains of the first paragraph thereof, which reads: "If the evidence is contradictory, your decision must be in accordance with the preponderance thereof." This instruction continues by charging the jury that the apparent contradictions in the evidence should be reconciled, if possible, and concludes by saying: "When the evidence *** is so equally balanced in weight *** that the scales of proof hang even, your verdict should be against the party upon whom rests the burden of proof." The jury was also correctly charged that the affirmative allegations of negligence in this case were made by the plaintiff, who must therefore assume the burden of proof.
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 & A. Ry. Co., 201 Cal. 560, 258 P. 73).
On plaintiff’s theory of the cause of the accident in the present case, the doctrine of the last clear chance does apply. Traveling on his proper side of the highway at the same rate of speed employed in passing the stage, the plaintiff was proceeding on his way ignorant of his danger, and with no reason to suppose the driver of the stage would retain his position partly over on the left side of the pavement and increase his speed so as to overtake and collide with the Packard car. Upon the contrary, the evidence seems conclusive of the fact that the stage driver must have known of the presence and the danger of the plaintiff who had just passed and was driving the Packard directly ahead of the stage. The driver of the stage certainly should have seen the Packard, and could have so regulated the speed or diverted the course of his machine as to avoid the collision. The stage driver excused this failure by testifying he did not see the Packard in time to prevent the accident. Discussing this same claim of ignorance of the peril on the part of the accused tort-feasor in a similar case, the court says in Hoy v. Tornich, supra, in effect that the jury was not bound to accept the defendant’s statement as true, but had a right to decide from all the facts of the case whether he actually had knowledge of the complainant’s predicament and danger, or not. The instruction does state that the plaintiff was "in a position of peril from which he probably could not escape." This was apparently true, for he did not realize his peril, and was therefore not likely to attempt to escape from an unknown danger. The instruction is technically defective in omitting to specifically state that the defendant was able to avoid the accident. This necessary element is, however, inferred by the language employed as follows: "Perceiving plaintiff’s perilous condition (he) failed to exercise ordinary care and prudence to avoid injuring the plaintiff." It can scarcely be reasonably argued upon the facts of this case that the stage driver did not have the ability to prevent the collision. The speed and location of the stage were within the control of the driver. The jury must have understood from the language used that his ability to avoid the accident was a condition upon which his liability depended. Thompson on Trials, § 2431, is authority for the declaration that instructions which are merely faulty or technically inaccurate will not require the reversal of a judgment, unless the defects are serious enough to have misled the jury and to have caused a miscarriage of justice. We are of the opinion the defect of this instruction is not reversible error.
Other instructions are complained of. Although some defects exist, the faults do not seem serious. The jury was very fully and, we think, fairly instructed. Upon an examination of the entire charge, we are of the opinion that it contains no reversible error.
Finally, the appellant assigns as prejudicial misconduct certain alleged misstatements of facts and law made by plaintiff’s attorney in the course of his argument to the jury. The substance of this objectionable argument was to the effect that the defendant claimed that, because the stage company had a schedule requiring it, and that the stage was actually traveling 35 miles an hour, it was not compelled by law to turn out for a passing machine, since the statute required one to give way for a passing machine only when it was traveling "at a lawful rate of speed." There was some evidence that the stage was traveling 37 miles an hour. The jury was specifically instructed that, if they found that the plaintiff was exceeding 35 miles an hour, he could not recover. It was also instructed that, if the stage was traveling 35 miles an hour, it was unlawful for the driver of the Packard to attempt to pass it. The finding of the jury was favorable to the plaintiff on these issues. This objectionable language appears to have been mere theoretical argument. Conceding that the statements were the result of excessive zeal and were unwarranted, upon objection on the part of the defendant, the court promptly charged the jury that "any statement of counsel is not evidence in the case and that unless such statements are borne out by the evidence or by the instructions of the court *** they are to be disregarded." We are of the opinion that the argument of counsel does not amount to misconduct, and that it was not prejudicial.
The judgment is affirmed.
We concur: FINCH, P.J.; PLUMMER, J.