Henry v. Lingsweiler

There are two appeals upon the same record, viz.: The one from an order granting a nonsuit and the other from a formal judgment of nonsuit. [1] The appeal from the original order granting the nonsuit was proper and sufficient to authorize a review of the action of the court in the making of said order. In fact, the “order” granting the nonsuit amounted in legal effect to a judgment of nonsuit, since it necessarily involved a final and definitive disposition of the case, and such a judgment is, therefore, one from which an appeal may be taken. [2] The appeal secondly taken, viz.: Prom the “formal judgment” of non-

The action was by plaintiff against the defendant for damages for personal injuries suffered by the former by reason of having been struck by the automobile of the latter through the alleged negligent driving of said automobile.

The accident in which plaintiff was injured occurred on one of the highways of the county of Los Angeles, on the seventeenth day of October, 1922, near the noon hour of that day. The complaint alleges that plaintiff was at the time walking over and across Santa Monica Boulevard, near its intersection with Formosa Avenue (about fifty feet from the west side of Formosa Avenue), in said county, and "was proceeding in a northerly direction, and was beyond the center of said Santa Monica boulevard, to-wit: On the second (street) car tracks”; that, as plaintiff was so proceeding an automobile owned by defendant was traveling over and along Santa Monica Boulevard in an easterly direction, said automobile being then “so unskillfully, carelessly, recklessly and negligently managed and operated that it was driven wantonly and wilfully into and against plaintiff” while the latter was, as above indicated, at a point on Santa Monica Boulevard; that, by reason of so being “run into and against” him, plaintiff was “violently thrown to the ground with great force and violence underneath its (said automobile’s) wheels, which ran over his head and body, thereby causing the injuries hereinafter complained of.” It is alleged that said automobile, while owned by defendant, was at the time of the accident “being driven by his agent and servant in charge and control thereof, who was then and there acting within the course and scope of her employment, to-wit: The driving and operating of said automobile in and about and for the benefit of the business of the defendant.” Further it is alleged that, immediately prior to the time of its collision with plaintiff, said automobile was being operated and driven at a rate of about thirty miles per hour*, “when the driver’s view of the

The answer specifically denies the averments of the complaint, states facts negativing the claim that the driver of the machine was, at the time of the accident, operating and driving the car as the agent of defendant, and pleads the defense of contributory negligence on the part of plaintiff as the efficient or proximate cause of the personal injuries inflicted upon the last-named because of the mishap.

Plaintiff’s case, so far as the proofs were concerned, being closed, the defendant moved for a nonsuit, the motion being based upon three grounds, to wit: 1. That, while the defendant’s ownership of the car was admitted, the evidence as produced by plaintiff failed to show that the party driving or operating the machine at the time the accident happened, was, as such driver or operator, the agent of defendant, but that she was then thus using the car for her own purposes; 2. That the evidence wholly failed to show that the injuries received by plaintiff were directly or proximately caused by the negligence of said driver; 3. That, to the contrary, the evidence disclosed that the injuries complained of were proximately caused by plaintiff’s own negligence—that is to say, that the accident and resulting damage to plaintiff’s person was directly due to contributory negligence on his part.

The court below, in disposing of the motion, based its order on the grounds that the evidence failed to show that

Santa Monica Boulevard, on which the accident occurred, is a street in the county of Los Angeles running east and west. In the center thereof is a double street-car track, one for the east-bound cars and one for the west-bound cars. Said boulevard is approximately sixty feet in width between the curbs and the distance from the south curb to the south rail of the east-bound car track is approximately twenty-one feet, three inches. The distance between the rails of both the east-bound and west-bound car tracks is four feet, nine inches. The distance between the east-bound and westbound car tracks is approximately eight and a half feet, and the distance from the north rail of the west-bound car track to the north curb is approximately twenty-one feet, three inches.

The driver of the car that struck plaintiff was a Miss Ethel Buser, the stepdaughter of the defendant. It was admitted that the latter was the owner of the car.

It appears that the plaintiff, on the seventeenth day of October, 1922, was in the employ of a concern known as the “King Yidor Studio,” at 7250 Santa Monica Boulevard, in the county of Los Angeles; that at or near the noon hour of that day one W. L. Harmon, also employed by said concern, and one L. E. Roberts, were about to start in the latter’s automobile to lunch; that plaintiff, also desiring to go to lunch, asked Roberts and Harmon and was given by them permission to ride with them to a restaurant known as “Nick’s Cafe,” located on Santa Monica Boulevard, about eighty feet east of Formosa Street; that plaintiff took a seat in the rear of the automobile, and that, on leaving the studio grounds, Roberts, who was driving, turned east on Santa Monica Boulevard and continued so to travel until he reached the point on said boulevard at which the cafe named

W. L. Harmon, above mentioned as one of the parties in the Roberts car as it was taking plaintiff to the cafe, testified: “As we approached and were approximately thirty feet from the cafe, which is known as Nick’s Gafe, we were going about twelve or fifteen miles an hour. Mr. Henry said, ‘Here is where I get out,’ or ‘Here is where I eat,’ or something to that effect, and in doing so he alighted. Mr. Henry got out on the running-board of the ear, and I told him to be careful. As we passed a car parked by the south curb of Santa Monica Boulevard, opposite the cafe, and had practically stopped. Mr. Henry alighted, facing the restaurant. Mr. Henry gave a wave of his hand practically at the same time as he left the machine and stepped on the ground. He started walking across the street at a medium speed, and had gotten practically to the center of the street when an automobile passed between Mr. Henry and us, and soon thereafter an Oldsmobile coupe came along riding the center of the car tracks, going east. By that time Mr. Henry was on the north side of the street, north of the center a step or two. The Oldsmobile coupe struck Mr. Henry with the right front fender and right front wheel, both wheels passing over his body. I immediately got out of our car and went into the cafe to get a towel. . . . Mr. Henry was lying on the north side of the center of Santa Monica boulevard.”

On cross-examination, Harmon testified: “I actually saw the car strike Mr. Henry, and at the time the car struck Mr. Henry, he was walking toward the restaurant. He was not standing still. I saw Mr. Henry from the time he left the machine until the machine which passed between him and us, which was going I should estimate around 20 miles an hour, obscured my vision. I did not see the Oldsmobile coupe before Mr. Henry had alighted from our machine, but did see it after he had alighted and just before he was struck. I saw the Oldsmobile coupe when Miss Buser, the driver, turned out of her path on the right-hand side of the street and into the center of the street to pass the other car which went between Mr. Henry and ourselves. Mr. Henry had plenty of time to pass in front of the car which later went between him and ourselves and to walk to

Mrs. Helen Schuyler, sister of Miss Ethel Buser, who was at the time of the collision operating the car that struck plaintiff, was in said car with her sister when the accident happened. Mrs. Schuyler testified: “On or about the 17th day of October, 1922, about noon, I was driving in the Oldsmobile coupe with my sister. The Oldsmobile coupe was owned by my father, and was being driven from my father’s home on Ogden drive toward the city. My sister Ethel Buser was driving the car. I first saw Mr. Henry about two minutes before the car struck him. We turned around one car to get past, and were rather in a hurry, and we were right on him before we realized it. I have driven a car for many years and would judge that we were driving between twenty-five and twenty-eight miles an hour. When Mr." Henry was struck, he was about in the middle of the street between the two car tracks. No warning was given, and I could not say whether or not the brakes were applied before Mr. Henry was struck. We had turned out to pass a car, and that brought us to the center of the street. We were just passing the car when the accident happened. We struck Mr. Henry while he was between the car tracks, and, as I remember it, we had turned to the extreme left-hand side of the track, and then, turned in to the right. I first saw Mr. Henry when he was getting off the running-board. I saw him all the time after he got off the running-board, perhaps 15 feet away from me at that time, until he was struck. There was a car parked at the curb, and north of that was the car that Mr. Henry got off, and north of that was the car which came between us and the car which Mr. Henry got off, and we drove around all three cars and ran

On cross-examination Mrs. Sehulyer testified: “At a point one hundred or one hundred fifty feet from the scene of the accident, my sister was driving on the right-hand side of Santa Monica boulevard between the east-bound tracks. I mean by that that the left wheels of our car were between the rails of the east-bound car track. Her right wheels would be some distance over to the right of the south rail. The car that we passed at the time the injury occurred had passed us previous to the accident, going at a speed of about thirty miles per hour. I don’t know how far from the scene of the injury the car which we were passing when the injury occurred, first passed us. I saw Mr. Henry jump off the automobile but did not see him throw either arm up. Mr. Henry was walking at a medium speed. I do not remember whether or not he looked in our direction. I did not call my sister’s attention to the fact that this man was jumping off that car. Mr. Henry passed in front of the machine ahead of us, but I do not know how far in front of it. I think he went in front of the machine and just had time to get by. Then we hit him, soon after he got by. When he started to walk in front of that other machine our machine had started to pass up that machine. He stepped right out from in front of that machine right in the pathway of our machine. I judge he was the length of our machine in front of us when he stepped in front of our machine—or about ten feet. When we passed the other car, I should judge it was going at about thirty miles an hour, and we turned around to our left. We were going to speed up, as

Miss Ethel Buser, driver of the car, testified that the automobile was owned by her stepfather; that some time prior to the date of the accident her father, intending to depart for some other place, gave her possession of the ear and the key thereto; that her father was not in Los Angeles County on the day of the accident. She stated that she was the only member of the family that drove the automobile and that when her father delivered to her the possession of the car he said to her that during his absence she should drive her mother about and do any other service in connection with the household affairs; that they were having “a lot of trouble 'with the telephone and my mother told me to go in that day (the day of the accident) and report to Mr. Battery of the Telephone Company that our phone had been out of service for a number of days. And she (referring to her mother) gave the bill to pay and told me to pay the telephone bill, and also a sample of material for a blue dress she was making and I was to get that that day. ’ ’ The telephone bill, she stated, was her father’s bill and the telephone was at their home 1409 Ogden Drive. “Q. Well, then, where were you bound at the time of the accident? A. Down to the telephone company. That was my first mission. Q. What other missions were you bound upon, if any? A. I had a sample of blue material. My mother was making a gown and I was to take the material back to her. Q. Before your father went away, had that ear been used? A. By whom? Q. I am asking the question. Had it been in use? A. My father always drove it.* Q. For what purpose was the car in use before your father went away? A. He always drove it for his own pleasure and for his business. I had never driven the car in my life for my

The above statement comprehends the salient facts brought out by the testimony presented by the plaintiff in support of his complaint. The sole question submitted for decision is, of course, whether the court below was legally authorized upon that testimony to take the case from the jury.

[3] The rules governing the decision of a motion for a nonsuit are well settled and equally well understood. They may, however, with propriety briefly be re-stated here. “A motion for a nonsuit,” says the court in Bush v. Wood, 8 Cal. App. 650 [ 97 Pac. 710 ], “presents a question of law for determination by the court. The motion is tantamount to a demurrer to the evidence, or an objection that, admitting all the proved material facts to be true, said facts do not in legal effect operate in favor of plaintiff, or, in other words, do not entitle him to the relief asked for by him.” [4] And the evidence, on a motion for a nonsuit on the close of plaintiff’s case, must be accorded the benefit of its full probative force, and this is true whether the evidence has been erroneously admitted or not. (In re Daly, 15 Cal. App. 325 , 331 [ 114 Pac. 787 ].) The evidence, on such a motion, must be taken most strongly against the defendant. (Goldstone v. Merchants’ Ice Co., 123 Cal. 625 [ 56 Pac. 776 ].)

“Every favorable inference fairly dedueible, and every favorable presumption fairly arising, from the evidence produced must be considered as facts proved in favor of the contestants. Where evidence is fairly susceptible of two constructions, or if either of several inferences may reasonably be made, the court must take the view most favorable to the contestants. All the evidence in favor of the contestants must be taken as true, and if contradictory evidence has been given, it must be disregarded. If there is any substantial evidence tending to prove in favor of contestants all the facts necessary to make out their ease, they are entitled to have the case go to the jury for a verdict on the merits.” (Estate of Arnold, 147 Cal. 583 [ 84 Pac. 252 ]; see, also, Estate of Welch, 6 Cal. App. 45 [ 91 Pac. 336 ].)

[5] Tested by the foregoing principles, it is clear, from an examination of the testimony herein, that the judgment

There can be no question that there is evidence which shows that at the time she drove her car into and against the plaintiff, thereby inflicting the injuries upon the latter of which he here complains, Miss Buser was, in driving the car, guilty of gross carelessness. The testimony of her companion riding with her at the time (her own sister) clearly —indeed, unquestionably—supports this statement. She testified, as seen, that she said to her sister (the driver of the car) that she was in a hurry “and my sister put on a little more speed”; that thereupon Miss Buser speeded up the car so that it was then being driven approximately at the rate of thirty miles an hour; that, while the car was being driven at that rate of speed, it was turned to the left or toward the north side of the boulevard, to “go past another car,” and that it was then that their car struck the plaintiff. She further testified, as will be noted, that her sister gave no warning signal of the approach of her car. Thus driving her ear, and without sounding any warning, or giving any signal of its approach, on a much-used thoroughfare by both motor vehicles and pedestrians, as the evidence indicates was the traffic situation of Santa Monica Boulevard in the block in which the accident occurred, constituted on the part of the driver not only intrinsic negligence, but negligence per se, or as a matter of law, since the act of commission and the act of omission mentioned were in violation of the express mandates of the statute. (See section 20a of the Motor Vehicle Act 1915 (Stats. 1915, p. 406), regulating the rate of speed over highways and the degree of care required in the operation of motor vehicles with respect to the right of pedestrians, and section 12 of same act, requiring motor vehicles to be equipped with sufficient warning apparatus, the same to be used for the purpose of giving warning to pedestrians, etc., of the approach of such vehicles.) But the trial court itself, having, as shown above, intimated that there was evidence showing or tending to show that the driver of the car was guilty of negligence in its operation at the time the plaintiff was struck, further consideration of that phase of the case may be dispensed with. [6] This leaves for consideration the principal grounds upon which the court seems to have predicated the order or judgment of

[8] The conclusion of the trial court that the plaintiff, at the time he received his injuries, was guilty of contributory negligence, or, in other words, that his injuries were proximately caused by his own negligence, is entirely without support. It has often been said that, “It is very rare that a set of circumstances is presented which enables the court to say, as a matter of law, that negligence has been shown. ’ ’ (Seller v. Market-Street Ry. Co., 139 Cal. 268 , 271 [ 72 Pac. 1006 ]; Zibbell v. Southern Pac. Co., 160 Cal. 237 , 241 [ 116 Pac. 513 ]; Reaugh v. Cudahy Packing Co., 189 Cal. 335 , 343 [ 208 Pac. 125 ]; Rosenbloom v. Southern Pac. Co., 59 Cal. App. 102 , 111 [ 210 Pac. 53 ]; Wing v. Western Pacific R. R. Co., 41 Cal. App. 251 , 257 [ 182 Pac. 969 ]; Carey v. Pacific Gas & Elec. Co., 75 Cal. App. 129 [ 242 Pac. 97 , 99].) As will be noted, from an examination of the testimony of the plaintiff and others, as hereinabove given, the plaintiff, hav

[11] The plaintiff objects to a ruling of the court denying him the right to prove, as an element of the negligence of the driver of the automobile which did the damage complained of, that the brakes of said automobTe were not in good condition. The witness Harmon, it appears, after the plaintiff was struck down, used the car driven by Miss Buser and which struck plaintiff, in which to take him (plaintiff) to a hospital. Harmon drove the car to the hospital. He stated that he had occasion to use the brakes of the car at that time and he found them in “very poor condition,” explaining that “on one occasion in turning out from Santa Monica to the north on Gower Street to go to the Hollywood Community Hospital” he “practically went over the curb with the front right wheel turning to the left up on

The judgment appealed from in Civil No. 3132 and the judgment appealed from in Civil No. 3133 are and each of them is hereby reversed.

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