Graves v. Kern County Transportation Corp.

This is an action in which the plaintiffs seek to recover damages for the death of their son, caused by a motor vehicle accident. The accident occurred in the city of Bakersfield, in a subway under the Santa Fe Railroad tracks, on Union Avenue, a paved street which runs north and south. The bottom of the subway is flat for eighty feet, and the ascent on either side is 300 feet long from the level of the bottom to the street level above, the grade on these ascents being about five per cent. At a point on the east side of the north incline, about 100 feet up the slope from the beginning of the ascent and twelve feet east of the east edge of the pavement, on the night here in question, there was a hole about four feet long, north and south, three feet wide and one and one-half feet deep. The twelve feet from the pavement to this hole was a gradual rise and from the hole on, the slope of

Appellants’ first point is that the evidence is not sufficient to support the verdict of the jury as to negligence upon their part which proximately caused the injuries complained of. It is argued that there is no evidence to show excessive speed or other negligence; that the driver of the stage testified that he entered the subway at twenty miles an hour; that he did not see the Hudson until within twenty feet of it; that he was then going about fifteen miles per hour; that he was unable to pass to the left of the Hudson because of approaching automobiles; and that he thought there was room to pass to the right of the Hudson, between that machine and the bank. On the other hand, McBride, who had gone back to flag approaching cars, testified that other approaching cars either stopped or slowed down sufficiently to pass, and that he tried to stop the stage, without success; and that the stage was traveling forty-five or fifty miles an hour when it passed him. Appellants point out that he was not' a good judge of speed, as he testified at the coroner’s inquest, “No; I’m not what you would call a good judge of speed but it was going very fast.” "While this might affect the weight of his evidence, that argument is one for the jury. One of appellants’ witnesses (Keck) testified that just as he was entering the south slope of the subway in a Ford coupe, at about twenty-five miles an hour, the stage passed him and proceeded down the incline. The driver of the stage testified that he did not apply his brakes as he descended the slope, but that when he first saw the Hudson, when about twenty feet therefrom, he put his car in second speed and set his brakes. If McBride’s testimony could be disregarded, it still appears from the evidence that a stage, twenty-five feet in length, traveling at a rate of speed sufficient to pass another car going twenty-five miles an hour, entered a decline of five per cent grade which was 300 feet long, passed down the same without its brakes being applied, and crossed over a level strip eighty feet in length; that it then proceeded up more than

Appellants next contend that the evidence, in three different aspects, shows contributory negligence upon the part of the deceased. It is first argued that since the deceased and his companions knew that the Hudson car had stalled twice within five blocks' of the entrance to the subway, it wás contributory negligence, as a matter of law, for them to have started the car down into the subway. It is only where the deduction to be drawn from the evidence is inevitably one way or the other, that the question of contributory negligence is to be withdrawn from the jury. (Wise v. Maxwell Hardware Co., 94 Cal. App. 765 [ 271 Pac. 918 ].) On this point, appellants infer that the car was pushed into the subway while the engine was not running. While the car was pushed to start the engine, one of the party, Fred P. Thaddeus, testified that the engine started before it reached the descent and that the car entered the subway on its own- power. Be that as it may, the car was in charge of the automobile salesman, who was demonstrating it, and another man who was driving it. They may have known the car stopped on these two occasions because of the way it was adjusted, or because of some defect which caused it to stop when it was slowed down too much, but which never appeared when the ear was being given the gas. Such an experience is not unknown to automobile drivers. They may have had reason to believe that the trouble was not to be expected to repeat itself in the next 700 feet, even though they had to pass over an incline with a grade of five per cent. It could hardly be held as a matter of law, that they were guilty of negligence. Even if it could be so held, there is nothing in the evidence to attribute this negligence to the deceased, as a matter of law. He was neither driving the ear nor. in charge of it. He is neither shown to have suggested proceeding through the tunnel, nor conclusively shown to have taken part in conveying the car into the tunnel. ' In fact, we think there is no evidence to show

It is next argued that the deceased was guilty of contributory negligence as a matter of law, in standing behind the Hudson without taking adequate precaution for his own safety. The evidence shows that some of the party were at the side of the Hudson while pushing it and there is no evidence in the record to show that the deceased was in the rear of the car. A flagman had been sent back, who succeeded in stopping other cars, and who tried to stop the stage. Some precaution being shown, the question of whether or not it was adequate under the conditions shown, was for the jury.

A third argument is, that contributory negligence on the part of the deceased is conclusively shown by the fact that no lights on the rear of the Hudson were visible. In the first place, the evidence on this point is conflicting. While there was testimony that the lights were not seen, there is other testimony that they were burning, and the stage driver’s statement that the bodies of men behind the Hudson obscured the light, is contradicted by the testimony of McBride, who testified as follows:

“A. Well, there were some on the right side pushing and some of them on the rear of the car pushing and about the middle.

“Q. Were any of them in such a position as to obscure the tail light?

“A. No, the tail light was not obscured.”

Even if it were true that the tail-light was obstructed by some person, there is no evidence that this was done by the deceased, or that he had anything to do with causing it to be obstructed.

Not only does a conflict in the evidence appear, as to each of these contentions, but we find no evidence in the record to show that the deceased, as a passenger, did anything that could be conclusively held to be other than would have been done by a reasonable man, under the circumstances. Under the facts shown, the question of contributory negligence was one for the jury.

Appellants next complain of the refusal of the court to give the following instruction on contributory negligence: “Negligence in any degree on the part of the deceased, Howard W. Graves, amounting to a want of ordinary care, which operating concurrently with the negligence of the defendants, if any, contributed proximately to the accident in question, bars a recovery in this action by the plaintiffs, and this is so whether or not the defendants or either of them could have guarded against it by the exercise of ordinary care.” It is first contended that this was not otherwise covered, as there was no clear and adequate definition of contributory negligence in the other instructions. In Metcalfe v. Pacific Elec. R. Co., 63 Cal. App. 331 [ 218 Pac. 486 , 487], the court said: “Taking all the instructions together it was not necessary specifically to define the term 1 contributory negligence’. The sum total of the instructions gave to the members of the jury everything that a specific definition could have conveyed to their minds.” An instruction practically the same as that quoted in the case just cited, was given in the instant case, in which, after defining negligence and the rules to be followed in determining the issue of negligence, the court instructed the jury that if they found that the greater weight of all the evidence was in favor of the contributory negligence of the plaintiff, they should accept such contributory negligence as a proved fact; otherwise, they should find that the plaintiff was not guilty of contributory negligence. The court then went on to instruct the jury that in order

This sufficiently covered that portion of the requested instruction and was sufficient in connection with the other instructions given. (Sinclair v. Pioneer Truck Co., 51 Cal. App. 174 [ 196 Pac. 281 ]; Power v. Crown Stage Co., 82 Cal. App. 660 [ 256 Pac. 457 ].)

Appellants next complain of the refusal of the trial court to give the following instruction: “I charge you that a person when suddenly confronted with danger is not to be held to the strict degree of accountability for their acts that they would be under ordinary circumstances, and in judging whether or not the driver of the stage exercised ordinary care as required of him his actions were to be measured by the facts and circumstances as they would have appeared to a reasonably prudent man in the exercise of the highest degree of care; and the fact that he might have taken some other course and thus avoided the accident, when viewed from the circumstances discovered later, would not be negligence on his part, simply because he chose the

This instruction left out of consideration the fact that the rule therein set ■ forth applies where a person, without his own fault, finds himself in a position of apparent and sudden peril. (Offerdahl v. Motor Transit Co., 80 Cal. App. 667 [ 252 Pac. 773 ]; Rush v. Lagomarsino, 196 Cal. 308 [ 237 Pac. 1066 ].) Appellants argue that this instruction should have been given in the instant case because the defendant driver was proved to have been proceeding at a moderate rate of speed, and without negligence. As we have heretofore pointed out, there was ample evidence to the contrary and that' fact cannot be taken to have been established. There being evidence tending to show that the driver’s perilous position was due to his own negligence, the omission from the instruction of the element of freedom from fault on the part of appellants, was alone sufficient ground for its rejection. (Brooks v. City of Monterey, 106 Cal. App. 649 [ 290 Pac. 540 ].) In the form given, the instruction was not proper, because one of the questions before the jury, under the evidence, was whether or not the driver of the stage was negligent prior to the time he saw the Hudson car, and the issue was not entirely the question of his conduct thereafter. (Vedder v. Bireley, 92 Cal. App. 52 [ 267 Pac. 724 ].) A further consideration is, that the jury was repeatedly instructed that appellants were not liable unless they themselves had been guilty of negligence and had done what no prudent or • reasonable man would have done, under the circumstances.

Error is next claimed because of three instructions which the trial court refused to give, which were as follows:

“(a) If you find that the injury to Howard W. Graves was unavoidable on the part of the defendant Haworth, then you must find for the defendants. In other words, if the accident happened without negligence on the part of defendant Haworth, then the plaintiff cannot recover in this action.”

“(b) If from the evidence you believe that at any time before the accident in question, by the exercise of ordinary care the deceased, Howard W. Graves, could have remained or placed himself in a position of safety had he known of the approaching automobile of defendants, and if you further believe that he could have known of the approaching

of said automobile by exercising his sense of sight or hearing, then I charge you that the plaintiffs in this case cannot recover damages from the defendants.”

“ (c) If you believe from the evidence in this case that the deceased, Howard W. Graves, was not exercising ordinary care at the time and place in question, and that but for this failure to use ordinary care on the part of the deceased the accident would have been avoided, then the plaintiff in this action cannot recover and your verdict must be in favor of the defendants.”

Not only does the evidence in this ease fail to warrant such an instruction as the first of these, but the main purport thereof is covered by two instructions in which the jury were told that in order to find a verdict for the plaintiff, they must find from a preponderance of the evidence that the defendant was negligent; that this negligence was the proximate: cause of the injury; that this negligence could not be presumed but must be proved; and that unless they were satisfied from the evidence that the defendants were negligent, and that the deceased was free from contributory negligence, then their verdict must be for the defendants. The second of these instructions overlooks the fact that the deceased was a pedestrian at the time -he was injured, and that the law did not necessarily compel him to look behind him for approaching cars. (Devecchio v. Ricketts, 66 Cal. App. 334 [ 226 Pac. 31 ].) It also ignores the duty of the driver of the stage to have avoided the accident if he could. (Furtado v. Bird, 26 Cal. App. 152 [ 146 Pac. 58 ].) In addition, this was covered by other instructions by which the jury was told that if the deceased was negligent in any respect which contributed to his injury, the plaintiffs could not recover. The third of these instructions merely restates the matter of contributory negligence, and was covered by at least three other instructions, two of which were given at the request of appellants. In our opinion, the jury was fully and fairly instructed as to all issues submitted to them.

The judgment is affirmed.

Marks, J., and Jennings, J., concurred.

A petition for a rehearing of this cause was denied by the District Court of Appeal on March 25, 1931.