Ballos v. Natural

The plaintiff, while a pedestrian crossing Third Street in the city and county of San Francisco at its intersection with Thornton Avenue, was injured by an automobile operated by the defendant. The injuries were found by a jury to have been caused by the negligence of the defendant, who appeals from a judgment' for damages entered upon the verdict.

It is claimed that certain instructions given the jury were prejudicially erroneous and that the verdict on the issue of contributory negligence is unsupported.

The jury, at the request of the plaintiff, was instructed that “The operator of a motor vehicle has no right to assume that a road is clear but must under all circumstances and at all times be vigilant and must anticipate and expect the presence of others. Accordingly, the fact that the operator of the motor vehicle did not know that anyone was on the highway is no excuse for conduct which would have amounted to recklessness if he had known that another person or vehicle was on the highway.” It is contended that the instruction charged with respect to matters of fact,, assumed facts not proven and incorrectly stated the law as to the duty of the operator of a motor vehicle.

The record discloses no evidence that the defendant had knowledge of conditions on the highway, but the instruction reasonably construed was but the declaration of a rule of law and not a charge upon the facts, and, in view of the record, was not misleading nor could it have been misunderstood by the jury. Furthermore, the trial court • was careful to instruct the jury that “In considering the instructions you will understand that the court does not assume the existence of any facts for, as stated, you are the sole

We cannot agree with this contention. It is the duty of the driver of an automobile to anticipate the presence of pedestrians on the highway (Hatzakorzian v. Rucker-Fuller Desk Co., 197 Cal. 82 [ 41 A. L. R. 1027 , 239 Pac. 709 ]), and each of the instructions criticised was approved in Nichols v. Nelson, 80 Cal. App. 590 [ 252 Pac. 739 ], Moreover the jury was elsewhere fully and correctly instructed as to the relative rights of pedestrians and those operating vehicles on the highway. As held in the case last cited the employment of the word “proper” to indicate the care required of a defendant means only the exercise of that degree of care which a prudent man should use under like circumstances and which is the degree of care which the law imposes on the other (Ramsbottom v. Flood etc. Co., 138 N. C. 38 [ 50 S. E. 448 ] ; Missouri, K. & T. R. Co. v. Flood, 35 Tex. Civ. App. 197 [ 79 S. W. 1106 ]). As the court said, “Where a court has used words and phrases in their customary and conventional sense no complaint can be made—the jury are presumed to possess ordinary intelligence and to understand the meaning and use of words in their common and ordinary application,” citing Hutson v. Southern California Ry. Co., 150 Cal. 701 [ 89 Pac. 1093 ], As stated, the jury was fully and fairly instructed in the present case as to the degree of care required of both parties; and where this has been done a subsequent charge to find for one or other of the parties if proper care has not

The following instruction was also given at the request of the plaintiff: “You are further instructed that the law does not require of a pedestrian that he must look in every direction every instant of his progress. It does require that he must look at least in those directions from which danger may be easily apprehended as often and as carefully as would a person of ordinary prudence under like circumstances.” Subsequently there were given two instructions offered by the defendant which he claims were in conflict with the above, these being as follows: “In the exercise of a common right to the use of the public highways all persons, pedestrians as well as drivers of automobiles, using the same must exercise constant care and caution for the conservation of their correlative rights commensurate with the special hazard which is peculiar to and nowadays is ever present in the use of the public highways,” and “The law imposed upon the plaintiff Henry Ballos the duty of exercising ordinary care at all times. It was his duty to exercise his faculties of sight and hearing to ascertain whether an automobile was approaching immediately before going or attempting to go in front thereof. If he went or attempted to go in front of said automobile, and if at that time he could by exercising his senses of sight and hearing with ordinary care have ascertained the approach of said automobile and its proximity to the point at which he was crossing, and if he failed to do so, and if his failure to do so was a proximate cause of his injuries, then and in that event the plaintiff cannot recover, and your verdict must be in favor of the defendant Don Natural.” The jury was further instructed that “A pedestrian has no right to assume that a street is clear but under all circumstances and at all times he must be vigilant and must anticipate the presence of vehicles traveling in the street.”

The above instructions create no conflict in any material particular. Read together they fairly state the law; and as the jury was admonished by the court not to select a single sentence or a single instruction and base their verdict solely upon that, and told that they were to consider the instructions together as a whole, it cannot reasonably be said

The jury was also instructed that “It is part of the duty of the operator of a motor vehicle to keep his machine always under control so as to avoid collisions with pedestrians and other persons using the highway.” As claimed by appellant, it is the duty of a driver to use ordinary care to keep his vehicle under control and to avoid collisions, and to the extent that a higher degree of care was prescribed the instruction was erroneous. This instruction, however, did not stand alone, but was preceded and followed by others in which the court fully and correctly stated the degree of care required in the management of vehicles on public streets, thus removing the misleading effect, if any, of the instruction quoted.

It is further contended that the court by its instructions taken as a whole unduly enlarged the duties and obligations of the defendant and minimized those of the plaintiff. A reading of the instructions negatives this contention and shows that the charge as a whole fully and' fairly stated the law of the case.

The action was twice tried, and there appears some contradiction between the testimony of the plaintiff given at the first trial and that given by him at the second on the issue of contributory negligence. Appellant contends that the plaintiff should be bound by that given on the first trial of the action, which testimony, it is claimed, shows that he was guilty of contributory negligence as a matter of law.

The jury were the exclusive judges of the credibility of the plaintiff, and it was for them to determine, in view of the contradictory testimony given at the first trial, the extent to which his testimony was entitled to belief (Code Civ. Proc., sec. 1847; Welch v. Alcott, 185 Cal. 732 [ 198 Pac. 626 ]; Withers v. Massengill, 148 Cal. 769 [ 84 Pac. 153 ] ; People v. Raich, 26 Cal. App. 286 [ 146 Pac. 907 ]; People v. Chesney, 72 Cal. App. 570 [ 237 Pac. 793 ]).

Appellant in his closing brief claims that the admission of evidence of his acts and oral statements shortly after the accident was prejudicially erroneous.

Before this testimony was admitted there was introduced a writing signed by him stating that he knew at the time

It is urged that evidence of appellant’s conduct after the accident, in particular his visit to the police station and his statement to the officer that after the accident he kept on going, was incompetent. In support of this contention appellant cites Henderson v. Northam, 176 Cal. 493 [ 168 Pac. 1044 ], where it is held that while the failure to perform a duty imposed by statute is evidence of negligence, the act or omission in order to warrant a recovery must have contributed to the injury, and that the failure to stop after the accident, since it in nowise contributed to the injury, was not a subject for consideration by the jury. This rule, however, has no application here, as the testimony of the witness was offered for another purpose. Appellant having denied in his answer that his automobile struck the plaintiff, and the fact not having been admitted

After a review of the whole record, including the evidence, we are satisfied that the conclusions of the jury on all the issues were fully supported, and that no error is shown which would justify a reversal of the judgment.

The judgment is affirmed.

Tyler, P. J., and Knight, J., concurred.

A petition 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 October 22, 1928.

All the Justices concurred. .