Majority
This is an action for the recovery of damages for personal injuries suffered by plaintiff Henriette Nelson. It was tried by a jury. Defendants are sued as joint tort-feasors. Judgment went for plaintiffs against defendant Westergaard alone and he appeals..
Mrs. Nelson was riding in a sedan automobile with Westergaard, as his guest. Westergaard was at the steering-wheel and operated the car. Mrs. Nelson sat beside him, while the father of Westergaard occupied the rear seat. The car was proceeding eastward along Wilshire Boulevard in Los Angeles until it reached Highland Avenue, a thoroughfare which intersects Wilshire, at which point occurred the catastrophe out of which the action arises. There is a “jog” in Highland at the place where it intersects Wilshire. Coming into Wilshire from the southward at a certain point, Highland leaves that boulevard on the north at some little distance westward from the location of its southern entry into it. As the Westergaard car neared the intersection from the westward, respondent Dryden approached Wilshire from the southward, also in a sedan car, coming along Highland, his purpose being to enter into Wilshire, make the left turn necessary to enter the northerly prolongation of Highland therefrom, and proceed thence along that thoroughfare. Dryden sat at the driver’s seat of his car. His wife was at his right, on the front seat. Senator R.
This assertion requires a particular examination of the facts bearing upon the question, for the reason that Westergaard testified at one place in the record that his car was traveling at a speed of less than ten miles the hour at the moment of impact between the two vehicles, “possibly five or six”, and again, “I think it was about five or six”. We shall show from the record conditions which demonstrate that these statements are unworthy of belief, but as we cannot charge Westergaard with wilful falsification, we shall first show from his own testimony circumstances which tend somewhat to indicate that his recollection of the events surrounding the catastrophe was extremely clouded, as it well might have been, because of the appalling nature of the
We shall now recite the testimony bearing upon occurrences surrounding the catastrophe and shall later describe the state of the two cars after they had collided. Police Officer Slope arrived on the scene soon after the accident. He said: “I asked Mr. Westergaard how fast he was driving. He told me between 35 and 40. That he was going east on Wilshire and came around two cars and saw Mr. Dryden crossing the boulevard. He swerved to the left trying to go to the rear of Mr. Dryden, but Mr. Dryden stopped, he claimed, and he crashed into the rear end. He said he slowed down; I could not find any skid marks, although I looked for them; there were no skid marks. . . . Mr. Westergaard said he was going 35 or 40 miles an hour. I just told him it was kind of fast going down Wilshire at the intersection.” The statement of Westergaard to the officer that Dryden stopped his car requires brief attention
We come now to the testimony of Dryden. He said: “I should judge I was driving from five to seven miles an hour as I started to enter Wilshire boulevard. . . . There was traffic going down the street from the west, and as I gradually pulled out onto the boulevard the traffic came to a stop at the street line of Highland avenue to let me pass. . . . As I started forward there was no cars in front of me going up and down Wilshire boulevard. . . . The cars had stopped on the street line of Highland avenue. Two ears had stopped; they were at my left. ... I don’t think he [Westergaard] was traveling less than 35 miles an hour. At the time I first saw him Mr. Westergaard was in the intersection of Wilshire and Highland.” Dryden spoke to Westergaard after the accident: “I asked Mr. Westergaard what he was trying to do. He said, ‘I don’t know. My, I never have done such a thing in my life before. I know I am to blame. If there is anything to do that I can make it right, I will endeavor to do it.’ ” The witness further said: “I don’t believe that he [Westergaard] applied the brakes to his car that I knew or know of. I didn’t hear him. He did not give me any alarm with the horn or sound of his car. . . . As to the time that elapsed between the time that I first saw Dr. Westergaard and the impact,—I saw him and then he hit me; that is all there was to it. At the time he hit me
The elder Westergaard, the occupant of the rear seat in his son’s car, testified: “I would say that Mr. Westergaard was driving fast at the time of the collision; middling fast, I guess. . . . By ‘middling fast’ I mean just the way the crowd goes, generally.” Westergaard himself, the driver of the ear, testified: “When I got to within 100 feet of the intersection I was driving perhaps 30 to 35 miles an hour; that is my best judgment. There were other machines moving in traffic with me, going in the same direction. So far as I recall, I was following the general speed that obtained along there at that time. As I approached the intersection, I came within perhaps 20 or 30 feet of it, roughly— these figures are bound to be rather rough—because things happened very quickly at a time like that—I noticed a car coming from the right, coming in "from the right hand on Highland; coming in on Highland from the right. I started to move to the left and saw that the car continued to move regardless of my turn; and so I swerved in the other direction; and in the meantime we were getting uncomfortably close together, and so I attempted to swerve right, and apparently the other car had either very nearly stopped or stalled, or something, I couldn’t quite tell. I was too busy trying to avoid hitting him to be able to say that. And this collision occurred.” Westergaard testified further: “I was perhaps ten or twenty feet from Highland when I saw the Dryden car coming into Wilshire. I do recall that I gave my deposition a while ago. I did not say that I was a distance of 100 feet away from the intersection when I first saw the Dryden car; I think I said 50; I said I wasn’t sure. It might have been 50 to 100 feet. As I approached Highland avenue I saw the Dryden car just going into the intersection. At that time I was not quite in the intersection and the Dryden car was near the middle line of Highland going into the intersection. At the time I saw this car coming into Wilshire boulevard I was a distance of from 50 to 100 feet away; and that is true, regardless of ■what I said in the deposition. Then I first swerved to the left and I was afraid I was going to hit him in front, and then I swerved to the right. I finally did hit him. toward the rear.” And again: “I did not give Mr. Dryden
We have reserved for separate consideration the matter of the personal injuries suffered by those concerned in the accident, for severe casualties occurred to occupants of both cars. Although Dryden occupied the driver’s seat in his car and the vehicle was struck toward the rear, he suffered a fractured rib. Dryden testified, in part, concerning his wife: “Pier leg was hurt and skinned a little bit; her stockings tore off. ...” Mrs. Dryden said: “The force of the impact threw me out of the door. My side must have hit the handle of the door knob and it threw me out; and the next thing I knew I was down on the street. I was injured.” Senator Del Valle, it will be remembered, was in the middle of the rear seat of the Dryden car. IPe testified: “The Dryden car was struck on the back door. I felt the impact, and it sent me against the glass in the back seat, and I broke the glass with my head. The impact was on the right-hand side of the ear; I was rendered unconscious at that moment. I don't remember anything at that time. I came to about three-quarters of an hour afterwards.” Dryden testified: “The impact threw Senator Del Valle’s head through the glass in the right hand side of the rear; it cut his head open across the top.” The elder Westergaard said of his own experience at the moment of the collision: “When this impact took place it broke my glasses and I drove against his seat and so I bruised my arm a little bit; my left arm. After the impact I found myself in front of my son’s shoulders in the front seat of the car. He was in his seat, of course. The three of us kept the seats; I was just shoved into the front seat with my arm; I didn't fall down or anything like that.” This is somewhat difficult to comprehend, but Westergaard the younger testified: “At the time of the impact I found my father huddled up on my shoulders.” Whether Westergaard himself was physically injured the record does not show. If he was not, he was the only one of the six concerned who escaped. Mrs. Nelson suffered the most severe casualties of all. She, herself, and her physician testified as to the nature of her injuries. Her
It has already been shown by the testimony of Dr. Kocher and Officer Slope that when the two cars crashed together both the left wheels of Dry den’s vehicle rose from the ground and that it was pushed, or made a “side skid” of from two to three feet. This alone is enough to show that Westergaard’s car was traveling no mere five or six miles the hour at the time of the collision. But let us see, in addition, what was done to both cars by the impact between them. Dryden testified: “As to my car, the running board on the left hand side was broken; and the fender on the left hand side also; the left rear door was jammed in, and the frame was bent; the rear axle was sprung; and the glass broke out of the window on the right side next to the rear ■ seat. The impact was so hard it cracked the battery." The other car was damaged in a much greater degree, as this testimony of Westergaard will show: “After the impact my car was towed to a garage; it had lost its own running power. As to the damage to the car, the left front end was pretty well jammed up one way or other and the radiator was smashed and jammed in and the front left headlight was broken. I think the bumper was bent and
This somewhat exhaustive recitation of the evidence is necessary for the general purposes of the decision, as well as to demonstrate that there is no substantial dispute of the evidence to the effect that at the moment of the collision Westergaard's car was moving at the rate of at least thirty-five miles an hour. It is impossible that a car moving at five or six miles an hour could have wrought the havoc that this engine of destruction did. It is much to be doubted whether Westergaard ever applied his brakes, despite his assertion that he did. It is certain that if he did the application was unsuccessful. It is quite likely, in what was surely a great flurry, a most unnerving moment, that he attempted to apply the brake and missed it. Indeed, any hypothesis is possible rather than the one that he applied the brake with any measure of success whatever. Finally, we conclude that there is nothing in the record which conflicts with the evidence that Westergaard struck the Dry den car while he was running at the same speed his car had maintained for some distance before it reached the intersection of Wilshire and Highland.
It is in effect provided by section 141% of what is generally known as the California Vehicle Act that a guest passenger in an automobile, or his heirs, can recover damages from the driver or owner of the car only ‘‘for injury to or death of such guest proximately resulting from the intoxication, willful misconduct, or gross negligence of such” driver or owner (Stats. 1929, chap. 787). It is contended by appellant, because of the language of this enactment, that the evidence was insufficient to support the verdict of the jury and that the trial judge erred in refusing to grant a motion for nonsuit which was presented to him. These points are to be resolved upon the question whether Westergaard was guilty of gross negligence. There is no intoxication in the case and the question of wilful misconduct may be disregarded. One is guilty of gross negligence when he fails to exercise slight care. This statement is so well
Appellant complains of various instructions which were given to the jury, because, it is said, the jury was told in them that Westergaard owed to Mrs. Nelson the exercise of ordinary care while she was but a guest passenger in his car. Some parts of the instructions, when severed from the remainder, will undoubtedly bear the construction appellant condemns, but we think the charge as a whole clearly enough informed the jury that the exercise of slight care was all that was necessary, or, conversely, that Mrs. Nelson could recover only if the jury believed Westergaard to have been guilty of gross negligence.
As an instance showing this situation the trial judge gave the following instruction:
“Every person is responsible not only for the results of his wilful act, but also for an injury occasioned to another by the want of his ordinary care or skill in the management of his property or person, except so far as the latter has wilfully, or by want of ordinary care, brought the injury upon himself. The extent of liability in such cases is defined in other instructions.
“With regard to .the defendant Waldemar C. Westergaard, and he is the only defendant left in this case as the other defendant is out of the case so far as the jury are
concerned, the general rule of law regulating a failure to exercise ordinary care and its consequence is modified by a legislative enactment requiring not only a showing of want of ordinary care, but either wilful misconduct or gross negligence or both on the part of the defendant Waldemar C. Westergaard, and that the plaintiff’s injury and damages proximately resulted therefrom before the plaintiffs can recover. This proposition of law will be more fully defined to you in other instructions.”
Appellant takes exception to the first paragraph of this instruction, but a mere reading of the instruction as a whole serves to convince that the first paragraph was but introductory to the second, and that, taking both paragraphs together, the law was correctly given to the triers of the facts. The use of the phrase “ordinary care” in the second paragraph did not, we think, operate to confuse the jury, considering the expressions contained in the latter portion of that paragraph.
Immediately following the instruction just considered the trial judge gave another, which we shall also quote. It is lengthy, but we nevertheless set it down, as it alone practically answers the argument covering many pages of appellant’s brief and inveighing against alleged instructions to the effect that Westergaard owed to Mrs. Nelson the exercise of ordinary care. The instruction:
“It is admitted in the pleadings and by the evidence that at the time of the accident referred to in plaintiff’s complaint the plaintiff 0. Henriette Nelson was a guest passenger in the automobile driven and operated by the defendant Westergaard. As to the liability of the defendant Westergaard to the plaintiffs or either of them, the law is as follows:
“ ‘Any person, who as a guest, accepts a ride in any vehicle, moving upon any of the public highways of the state of California, and while so riding as such guest receives or sustains an injury, shall have no right of recovery against the owner or driver or person responsible for the operation of such a vehicle.
“ ‘Nothing in this section contained shall be construed as relieving the owner or driver or person responsible for the operation of a vehicle from liability for injury to such guest proximately resulting from the wilful misconduct or gross
negligence of such owner, driver or person responsible for the operation of such vehicle; provided, that in any action for injury or damage to person or property by or on behalf of a guest, the burden shall be upon the plaintiff to establish that such wilful misconduct or gross negligence was the proximate cause of such injury or damage. ’
“The legislature of the state of California in 1929 undertook to create a different situation in the matter of negligence between the driver of an automobile who carried a person as his guest, and the driver of other cars. You will understand that a recovery may be had against the drivers of other cars than that in which a guest is riding, by proof of the fact that the drivers of other cars are guilty of negligence, as the same is herein defined to you; but by this act of the legislature, an entirely different situation was created in so far as the driver of a car in which a guest was riding is concerned. The plaintiff can only recover against the defendant Westergaard by proof of the fact that he was either intoxicated or was guilty of wilful misconduct or gross negligence.
“It is alleged in plaintiff’s complaint that the defendant Westergaard did operate his car wilfully, recklessly and with an utter disregard of the safety of the plaintiff 0. Henriette Nelson, and did operate his car in a grossly careless and negligent manner. The burden of proving this allegation rests upon the plaintiffs, and must be established to your satisfaction by a fair preponderance of all of the evidence, and unless it is so established, or if the proof thereon be evenly balanced, then your verdict will be for the defendant Westergaard. ’ ’
After quoting these two instructions we think it necessary to say but little more upon the point presented by appellant. The charge, so far as quoted, so clearly and properly stated the law to the jury that it would have required most unusual and impressive language elsewdiere in the charge to confuse the jury upon the question as to the degree of care owing by Westergaard to Mrs. Nelson. There is nothing in the instructions as a whole which could have had that effect.
Appellant insists that the trial judge failed to-define to the jury the “distinction between ordinary negligence, gross negligence and wilful misconduct”. No definition of ordinary negligence was necessary, as the point was not in
The trial judge gave to the jury several instructions upon the theory that there was evidence from which the jurors could justly have found that the intersection at which the collision between the two cars occurred was in a residential district, as that term is defined in the Motor Vehicle Act. Appellant contends that there was no evidence upon which the jury could have based such a finding. We think there was sufficient evidence to go to the jury on the question. Further, the question whether the intersection was in a residential district was of no real moment in the case. Under the evidence, Westergaard plainly violated the law against driving on a highway at a rate of speed which, “having due regard to the traffic”, would not be careful and prudent, and against driving “at such speed as to endanger” life, limb or property (Stats. 1927, p. 1436, sec. 113). He also violated the law against reckless driving on a highway (Stats. 1929, pp. 539, 540, sec. 121). On this latter point, observe, particularly, his own testimony as to the distance from which he first saw Dry den’s car, as to his attempt to pass ahead of Dryden, the latter being first in the intersection, and as to his attempt then to turn and pass to Dryden’s rear.
Appellant requested but the trial judge refused to give the following instruction: “Ton are instructed that gross negligence and wilful misconduct mean a recklessness
It is provided by section 4% of article VI of the Constitution that no judgment shall be set aside in any case because of error unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error has occasioned a miscarriage of justice. Under this rule, even if the trial court had committed the errors charged by appellant, the judgment must be affirmed. We do not perceive how the jury could have done otherwise than render verdict for plaintiffs, whether the trial court erred or not.
Judgment affirmed.
Craig, J., and Archbald, J., pro tem., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on March 27, 1933, and an application by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on April 27, 1933.