Phillips v. Hobbs-Parsons Co.

This is an action for damages for personal injuries. The cause was tried by a jury and a verdict returned for the defendant. A motion for a new trial was made and denied.

The plaintiff appeals from the judgment entered upon the verdict.

On the fifteenth day of November, 1920, near the hour of 5 o’clock P. M., the plaintiff, while driving a Ford roadster in a southerly direction along the west side of J Street, a public thoroughfare in the city of Fresno, an auto-truck, owned by the defendant, and driven by one Ray Summers, an employee of the defendant, was, so the complaint alleges, “suddenly and carelessly driven backward from the westerly curbing of J Street, where the car had been parked, and struck the automobile which plaintiff was, as aforesaid driving.” At the time of the collision, so the complaint alleges, it was “more than a half an hour after sunset,” and “it was dark, cloudy and raining, and the atmospheric conditions rendered the operation of vehicles dangerous to the traffic on and use of highways.” The result of the collision, so the complaint avers, was that the windshield of plaintiff’s automobile was broken, and a piece of the glass from said windshield was, by the impact, thrown against and struck the right eye of plaintiff “and greatly damaged and injured the same”; that the injury so received to his said eye was of such a character as that “plaintiff is compelled to wear glasses and is not able, and will not be able, to engage in such remunerative occupations as he would otherwise be able to engage in were it not for the injuries so received to his said eye; that the plaintiff, on account of said injury so received by him to his said eye, has been damaged in the sum of $25,000.” It is alleged that, at the time of the collision the said auto-truck of the defendant “had no lights either in front or in

The answer, while admitting that the windshield of plaintiff’s automobile was broken by a collision between the latter’s ear and the defendant’s truck, on the occasion mentioned- in the complaint, denies all the other averments of the last-named pleading, and as a special defense, sets up the plea of contributory negligence on the part of the plaintiff, which negligence, so the answer charges, was the proximate cause of the collision and the resulting injuries to plaintiff.

The plaintiff contends here that the evidence addressed to the issues shows, as a matter of law, that the plaintiff’s injuries were directly or proximately and solely caused by or through the negligence of the defendant or its employee, without any fault or negligence whatsoever on the part of the plaintiff. It is further insisted that the evidence upon its face shows that plaintiff was not guilty of contributory negligence and that but for two erroneous instructions given by the court upon the question of contributory negligence, the verdict would probably have been for the plaintiff..

The evidence shows that at the time of the accident plaintiff was twenty-four years of age and was in the employ of the Standard Oil Company in the city of Fresno as its advertising manager, his duties as such requiring him to travel through some four or five different counties adjacent to and in the neighborhood of Fresno County, at various intervals of time. He had, prior to the accident in question, met with another accident in which he suffered the loss or use of his left eye or, as he described t¡he condition of the left eye, “I had no vision in my left eye at all—I could barely tell night from day, and my right eye was perfect.” He had never, prior to the accident in question, in which his right eye was injured, used eye-glasses.

The evidence, without conflict, shows that it was dark at the hour at which the accident happened—between 5 and 6 o’clock P. M.—that it was raining and had been prior to the happening of the collision, and that the streets, due to the rain, were “slippery.” The evidence, without conflict, further shows that the street in the block in which the accident occurred was lighted—that is, the street light's, four on each

The plaintiff testified that, within a brief time after 5 o’clock P. M. on the day of the accident, he started from the office of the Standard Oil Company and went to a point on the street near said company’s office where he had parked his Ford automobile or roadster, intending, accompanied by a Mr. Beebe, also employed by said company, to drive to the place of business in Fresno of a Mr. Mugniani; that he and Beebe entered the machine and proceeded on their way south on the right-hand side of J street, at the rate of about twelve miles per hour; that, as driver of the machine, he sat on the left-hand side thereof; that the lights of his car were on; that he was “driving cautiously, the streets were wet and raining, and just as I got in front of Neilsen’s, why a truck backed right out into my car—at least, we got together right there in front of Neilsen’s and broke the ear up and smashed it all to pieces, in fact, and the windshield broke. Part of it went to my right eye, piece of glass into my right eye and cut it, and I went to the Emergency Hospital and later to the Burnett Sanitarium.” He stated that he was at the time driving “astraddle of the right-hand tracks of the street car, with my left wheel near the left-hand side of the right-hand tracks”; that the truck “backed out from the curb, I guess at an angle of 45 degrees towards me”; that there were no lights on the truck. The roadster came in collision with the “corner of the bed of the truck,” the plaintiff’s car being struck “practically in the center of the radiator.” He stated that he was within six feet of the truck before he saw it moving into the street from the curbing; that “it came right out within the scope of the lights on my car.” He further stated that as he was driving he was looking “straight through” the windshield of his car and could discern objects before ¡him, although, he admitted, the windshield was wet from the rain, the roadster having been parked and having remained in the street while it was raining before he started out with it and that at the time he was driving there was rain still running down the windshield.

The injury to his right eye was of a serious nature and the vision thereof materially impaired permanently, so the doctor who attended him testified.

. There were a few other witnesses who were in the immediate vicinity of where the accident occurred at the time of the happening thereof, and who testified, for the plaintiff, as to the fact of the collision, but whose testimony, except that of the witness Hopwood, furnished meager information as to the manner in which the collision happened to be brought about. The witness Hopwood described the manner in which the collision occurred about as the plaintiff and Beebe did. He said the truck was moving and backing into the street from the curbing when the Ford roadster struck it.

Bay Summers, the driver of the defendant’s truck, testified that about five or ten minutes after 5 o’clock P. M. he left the defendant’s store, went to where the truck had been left standing by him, and “turned on the Presto for my lights—tried to light them and they wouldn’t light, so I turned my Presto out and cranked the machine and got in the machine and started to back out”; that, in backing, an ■ autotruck has “but one speed” which is lower than the low speed going forward; that on the occasion of the accident he backed out “very slow” for a short distance, when he observed the plaintiff’s car traveling toward him and that he thereupon stopped his truck. He testified that, when he stopped the truck, plaintiff was at a distance of twenty-five feet from him or where his truck was standing. He testified, as did other witnesses, that the effect of the striking of the truck by the Ford car “straightened my truck out, as if I had been backing straight forward from the curb. ... I mean at right angles to the curb. It was turned by the impact at an angle to the curb about 45 degrees.” In other words, he explained that “the impact threw it (the truck) so it was straight toward the curb.”

Milo L. Rowell, manager of the defendant’s business in Fresno, testified that the autotruck, with which the plaintiff’s car collided, measured fifteen feet and six inches in length, that the width of the rear of the bed was six feet and two inches, and that the weight of the machine was 4,370 pounds. He also stated that the weight of plaintiff’s roadster was 1,600 pounds. This witness further testified that he had ascertained that the sun set on the day of the accident at the hour of 4:49 o’clock P. M.

The foregoing comprehends a fair statement of the evidence introduced before the jury by both parties.

It will be in order first to consider the point made by the plaintiff that the defendant was guilty of negligence per se by reason of its failure or omission to have the lights of its truck on at the time the accident occurred.

Section 13 of the State Motor Vehicle Act, as amended by the legislature of 1919 (Stats. 1919, pp. 191, 206), which governed at the time the accident in question occurred, provided, among other things, that: “All times during the period from a half hour after sunset to a half hour before sunrise, every automobile while on the public highway, shall carry at the front at least two lighted lamps, and every such automobile ... at the times and under the conditions in this section hereinabove specified, shall carry at the rear a lighted lamp exhibiting a red light plainly visible, under normal atmospheric conditions, for a distance of five hundred feet toward the rear and so constructed and placed that the number plate carried on the rear of such automobile or trailer shall be illuminated by a white light. in such-manner that the number thereon can be plainly distinguished under normal atmospheric conditions at a distance of not less than fifty feet toward the rear,” etc.

Subdivision d of the same section requires that at the time and under the conditions specified by said section every motor-truck of two tons carrying capacity or over “which is so governed or mechanically constructed or controlled that it cannot exceed a speed of fifteen miles per hour, shall carry at the front at least two lighted lamps which shall be

It is admitted that the accident happened after the sun had set and that the defendant" had no lights on his truck, either in front or the rear thereof, at the time he started to back it from the curbing into the street. The evidence is not clear as to the precise time at which the' accident occurred. The plaintiff, as seen, stated that he left the office of the Standard Oil Company at about 5 o’clock P. M., went to where his car was parked, a short distance from the company’s office, entered the car and “shortly after 5 o’clock”' was proceeding down J Street, being stopped for a moment by a'traffic officer before reaching the point at which he ran into the truck. Summers, driver of the truck, did not attempt definitely to fix the time the accident happened, but did state that his working hours were from 7 o’clock A. M. to 5 o’clock P. M. each day, and that he invariably quit working at the latter hour. The witness, De Camp, fixed the time at between 5 and 5:15 P. M.

It will be observed from a reading of the above excerpts from section 13 of the Motor Vehicle Act of 1919, that, if the accident occurred after the lapse of half an hour after the sun set on the day of the mishap, the omission of the defendant to carry lighted lamps, both in front and in the rear of the truck, at the time of the accident, constituted on its part negligence per se, or as a matter of law. If, on the other hand, the accident occurred before the lapse of half an hour after the sun set, then the question whether the defendant was guilty of negligence at all was one of fact for the determination of the jury. As to this matter, however—that is, as to the precise time at which the accident occurred—the evidence appears to be rather indefinite and uncertain. One of the witnesses for the defendant, it is true, fixed the time at between 5 and 5:15 o’clock P. M. This would bring the time of the accident within the half

It may be granted that the question whether or not the accident was proximately caused by the alleged contributory] negligence of the plaintiff is a close one. It is for this reason peculiarly one the determination of which was for the jury. Indeed, carefully considering all the evidence and thel inferences reasonably deducible therefrom—inferences which, it must be assumed from the verdict, the jury did draw—we cannot reconcile ourselves to the conclusion that, as to the

In the instant case the plaintiff, who was driving the machine, was much handicapped in such employment from the fact that he had the use of but one eye and this under weather and atmospheric conditions which greatly augmented the inconvenience and the danger of driving a car after the sun had passed to the other side. The streets were more or less slippery, making it a difficult undertaking to stop an automobile in one of those dangerous emergencies which only too often arise in automotive traffic, and there was.the added peril ordinarily incident to the blurring of the windshield of a car as the result of rain water flowing down and over it. [4] And in this connection it may be suggested that the jury might well have given little weight to the testimony of the plaintiff and the witness Beebe to the effect that, although the windshield of the Ford was wet and t-he rain still running down and over it, they were able to see through it with perfect clearness and so observe objects

[6] The law is, as the trial court in clear language stated it to the jury, that “negligence on the part of the plaintiff amounting to a want of ordinary care which, operating concurrently with the negligence of the defendant, contributes proximately to plaintiff’s injuries, will prevent a recovery in this action by plaintiff, whether or not defendant, by the exercise of ordinary care, could have guarded against it.”

[7] Those instructions do not accurately state the rule, because of omitting the word ‘ ‘ proximately, ” ■ so that t-hey would have read in part, if said word had been used: ‘ ‘ Such violation proximately contributed to the injuries complained of, ’ ’ etc. But the error in giving said instructions was fully cured by a correct statement of the rule in several other instructions embodied in the court’s charge, and particularly by the following given instruction: “Contributory negligence is defined as that negligence of plaintiff which contributes to his -injuries and without which said injuries would not have occurred.”

In view of the foregoing, and the other instructions in which the rule was properly and clearly stated, we do not see how t-he jury could have been misled to the prejudice of plaintiff by the instructions complained of.

The judgment is affirmed.

Plummer, J., and Finch, P. J., concurred.