Newton v. Thomas

In action for damages for the death of George Newton, a jury awarded plaintiffs $50,000. Defendants appeal from the judgment entered thereon and from the order denying a motion for judgment notwithstanding the verdict.

Questions Presented

1. Was decedent guilty of contributory negligence as a matter of law? (a) Was the scene of the accident in a business district? (b) Did decedent violate any law?

2. Effect of including adult children in the award of damages.

3. Alleged error in giving and refusing instructions: (a) Failure to instruct that area was a business district, (b) Failure to instruct that violation of section 562, subdivision (a), Vehicle Code, would be negligence per se. (c) Giving an instruction that to be contributively negligent decedent must have lacked ordinary care, (d) Giving an instruction on justification for violating the ordinance, (e) Giving an instruction on imminent peril, (f) Giving an instruction on emergency created by defendants’ own negligence, (g) Giving an instruction on intoxication, (h) Giving an instruction on headlight requirements, (i) Refusal to instruct that the 35-mile limit sign was immaterial, (j) Refusal to give other instructions.

4. Alleged errors: (a) Admission of accident report of Miss Newton, (b) Effect of jury taking into the jury room a report not admitted as an exhibit.

5. Are damages excessive?

Evidence

Decedent, Ms wife, plaintiff Florence F., Ms adult daughter, plaintiff Florence M., and one Stanley were returning to San Francisco after a visit to Fort Ord. Near the northerly city limits of Gilroy, at about 9:30 p.m., they stopped their car on the east side of Highway 101, opposite the Willows Café. At this point the highway is level, 60 feet wide, divided by a double white line in the center, and two single white lines forming a four-lane highway, the inner lanes 11 feet wide, the curb lanes 19 feet wide. The street was well lighted, the eve

Dorothy Littlejohn, 10 years old at the time of the accident (12 at the time of the trial), daughter of a bartender in the hotel owned and operated by the mayor of Gilroy, testified that she saw decedent take a couple of steps towards the café before the car,hit him. However, on cross-examination she stated that her sister who was with her at the time of the accident told her to say that the man was walking. On redirect Dorothy said that her sister had also told her to tell the truth.

The automobile that struck decedent was owned by defendant J. Ben Thomas, who was a member of the Gilroy City Council. He and his wife were driving north to shut off irrigation water in their pasture north of town. There is a conflict as to who was driving. Thomas, at the scene of the accident, was asked by Miss Newton, "Where is the man that hit my daddy?” He replied, "Don’t get excited, lady, here I am.” A witness testified that as the car skidded sideways towards him, it appeared to have only one occupant—a woman

1. Contributory Negligence.

(a) Business district.

Defendants contend that decedent was guilty of contributory negligence as a matter of law because of alleged violation of

Thomas measured the area and frontages thereon, and if his testimony and the conclusions defendants draw from it are correct, the district was a business one. On the other hand, under the testimony of Hyman, a Division of Highways Traffic Engineer, and the conclusions drawn therefrom by plaintiffs, it was not.

The first difference between the parties is whether in determining if 50 per cent of the 600-foot frontage is business, the building only is measured, or the lot on which it is located. Obviously it is buildings that must be measured. Otherwise, one small business building on a 300-foot lot would make the area a business district. Moreover, the section itself says “occupied by buildings in use for business.”

The second difference relates to two motels, and is primarily concerned with the question of what constitutes “entrance” thereto under section 90.1. The Twin Palms Motel appears in a u-shape, the south leg being 30 feet wide, the north leg 20 feet wide. The back portion which seems to consist of separate buildings could not be counted as these buildings are more than 75 feet from the highway. Because the building constituting the south leg has a door facing the highway plaintiffs concede that it should be counted. However, the building constituting the north leg has no door facing the highway. There is a driveway from the street between the two legs from which entrance may be gained to either building. There is another motel fronting on the street but whose building has no door facing the street. This motel (actually a café and motel) has adjoining it a driveway from the street, by which entrance is gained to both the motel and the café. Thus whether this building and the north leg of the Twin Palms Motel should be counted depends upon whether the driveways constitute an “entrance” to the buildings under section 90.1

In defining the word “entrance” the purpose of the act must be considered. It is to provide safety in the use of vehicles in areas where there is a great deal of turning, slowing and congestion. To define “its entrance faces the highway” to mean that its entrance must be in the front of the

The third difference between the parties is whether a duplex comes within the designation “multiple dwelling houses” which section 90.1 says must be counted as in use for business. The building in question Hyman called a “residence.” Thomas and a police officer called it a “duplex.” “Multiple” means “consisting of more than one.” (Webster’s Internat. Diet.) A duplex houses two families separately.

The fourth difference is as to the character of a 43-foot building which the witness Hyman said was a residence and Thomas testified was a rooming house. These were questions for the jury to determine.

Building Supply Co..................... 30 feet

Twin Palms Motel (south leg) ........... 30 feet

Willows Café.......................... 80 feet

Texaco Service Station................. 12.5 feet

Garage ............................... 59.7 feet

Lucille’s Café ......................... 25 feet

Total.........................237.2 feet

To this should be added the 20-foot width of the north leg of the Twin Palms Motel and the 15-foot width of the other motel and café. This would make a total of 272.2 feet which the evidence shows are occupied by buildings in use for business. Left for determination by the jury as to their character are the following:

Residence or duplex (discussed above).... 60.6 feet Residence or rooming house

(discussed above) ..................43 feet

If the jury considered both these structures as residences, then the business frontage, 272.2 feet, would not be equal to the 300-foot requirement of section 89. On the other hand, if the jury found that either or both of these structures were not residences, then, obviously, the business frontage would be sufficient to make the area a business district under the code. Thus, the character of the area was a mixed question of law and fact.

(b) Violation of law.

Assuming that the area was a business district, the jury had to determine under a conflict in the evidence whether decedent, when hit, was crossing the street, because defendants’ contentions that decedent violated section 38 of the Gilroy ordinance (crossing a street except at a crosswalk) and section 39 (crossing other than at right angles) are based upon that assumption. No one other than Dorothy Littlejohn claimed to have seen decedent move from the position where he stood talking to the occupants of the car. Dorothy’s credibility was a question for the jury. The burden of proving contributory negligence was on defendants. Additionally, they base their claim decedent was crossing on the testimony of Mrs. Newton that decedent was 2 or 3 feet from their car while talking to her, and the fact that the point of impact was

If the area were found by the jury not to be a business district, then section 562, subdivision (a), would apply. However, as we pointed out before, it would be for the jury to determine whether decedent was crossing the roadway, or failed to yield the right of way.

2. Adult Children Included.

Decedent’s children, plaintiffs Florence M. Newton and George J. Newton, were both of age and employed. However, Florence testified without objection that at the time of the accident she was living with her parents, and derived companionship and advice from her father. Plaintiffs’ attorney then stated that these two plaintiffs would waive any claim for damages and that they would ask that the case be submitted to the jury only on behalf of the mother. Nothing was

(b) Section 562, subdivision (a), Vehicle Code.

The court read the provisions of the Gilroy ordinance and then section 562, subdivision (a). It then stated that conduct in violation of the Gilroy ordinance would constitute negligence per se and then discussed that presumption of negligence. Unfortunately the court did not give defendants’ proffered instruction that violation of section 562, subdivision (a), would constitute negligence as a matter of law. It should have done so. It did instruct that a violation of section 510, Vehicle Code (basic speed law) would be negligence per se. The court discussed section 562, subdivision (a), at some length and made it clearly appear that if the jury should find that decedent was attempting to cross the street and failed to comply with the section, namely, did not “yield the right of way to all vehicles upon the roadway, ’ ’ decedent was guilty of negligence. Under the circumstances here, the failure to give the requested instruction was not prejudicial.

(c) Ordinary care.

The court instructed that for decedent to have been contributively negligent he must be shown to have lacked ordinary care. The instruction is in proper form and the type usually given in contributory negligence cases. Defendants contend, however, that, in effect, it told the jury that even though decedent violated the ordinance or the Vehicle Code he would not be negligent unless defendants proved that in such violation he lacked ordinary care. They correctly point out that as held in Satterlee v. Orange Glenn School Dist., supra, 29 Cal.2d 581 , 588, where there is a violation of a statute or ordinance, “responsibility may be fixed upon the violator without other proof of failure to exercise due care.” (P. 588.) While this instruction taken alone would seem to have the effect claimed by defendants, when considered as a part of the whole and with the other instructions, as we are required to consider it (Callet v. Alioto, 210 Cal. 65 , 70 [ 290 P. 438 ]),

(d) Justification.

The court gave an instruction relating to violation of the ordinance (it did not apply to a violation of the Vehicle Code) in the nature of BAJI instruction No. 149 relating to excuse or justification for violating it. Defendants contend, first, that it is erroneously worded in that where BAJI states, referring to a violator’s conduct, “excusable, justifiable and such as might reasonably have been expected from a person of ordinary prudence,” this instruction substituted “or” for “and.” Such change when the instruction is considered with all the others was not prejudicial. Secondly, defendants contend that there was no evidence to excuse a violation of the ordinance, if one occurred. Mrs. Newton testified that decedent while talking to her (and he was struck while in the middle of a sentence) was standing 2 to 3 feet from the car door, yet apparently the point of impact was 44 inches from the door. Those facts are sufficient to raise an inference that decedent, seeing the automobile bearing down upon him, might have tried to cross the street to avoid being hit. This would be a justification for violation of the ordinance. Hence there was basis for the instruction. Moreover, defendants themselves included in their request for an instruction giving section 562, Vehicle Code, a statement that it would be negligence per se if decedent violated it “and such act on his part was neither justifiable nor excusable.” Thus defendants were tendering the same issue on which they now complain the court instructed. If error, this was invited error and they may not now be permitted to complain of it. (Miller v. Dollar Steamship Lines, supra, 19 Cal.App.2d 206 , 211; Smith v. City & County of San Francisco, 117 Cal.App.2d 749 , 751 [ 256 P.2d 999 ].) Defendants try to excuse the offering of this instruction by claiming that they were merely meeting an issue tentered by instructions of plaintiffs. If, as they claim, there was no evidence to justify making this question an issue, they, should not have included that issue in their instruction.

(e) Imminent peril.

Contending there was no evidence to support an instruction on imminent peril, defendants contend the court

(f) Emergency.

Also contending that there was no evidence to support it, defendants complain of the giving of an instruction to the effect that a defendant cannot shield himself behind an emergency created by his own negligence. Defendants were driving at excessive speed and claimed not to have seen decedent who was in plain sight. This instruction was properly given as qualifying the instruction on imminent peril.

(g) Intoxication.

As pointed out before, there was evidence that Mr. Thomas was driving the ear and that he was intoxicated. Defendants contend that the amendment of the complaint to conform to the proof took from the jury the issue of which defendant was driving. It did not do so. It charged that both defendants negligently drove the automobile, and then added that it was being driven under Mr. Thomas’ supervision and control and for his benefit. Obviously, this latter allegation was to place liability upon Mr. Thomas, if the jury should find that Mrs. Thomas was the driver. Moreover, showing that defendants considered that the issue of who was driving was still before the jury is the fact that defendants requested a special finding on this issue. The court refused to require it, but did give the jury general verdict forms, one against both defendants, one against Mr. Thomas alone and one against Mrs. Thomas alone. The instruction on intoxication was properly given.

(h) Headlights.

The failure of defendants to see decedent prior to the accident even with the car’s headlights on, raised an inference that the headlights might not have been adequate. That fact supports the giving of the instruction on the statutory requirements as to headlights. (See Martindale v. Atchison, T. & S. F. Ry., 89 Cal.App.2d 400 , 415-416 [ 201 P.2d 48 ].) This issue is properly embraced within the allegation in the complaint of negligent operation. (See Carnahan v. Motor Transit Co., 65 Cal.App. 402 , 408 [ 224 P. 143 ].)

The court refused an instruction that in determining whether the area was a business district, the fact that it was posted as a 35-mile per hour speed zone was immaterial. Defendants contend that because the Department of Public Works has authority to increase the speed limit from 25 miles per hour, in a business district, the jury could infer from the presence of the sign that it was not a business district. We fail to follow this reasoning. The department has the power to make the prima facie speed limit in loth business and residence districts 35 miles per hour. Moreover, the jury was not instructed as to the basic speed limit in a business district and hence could not have determined that it was not such a district merely because its speed limit was 35 miles per hour. We see no error in refusing this instruction.

(j) Other instructions.

The court refused to give defendants’ instruction 28, based on BAJI Number 201-C, and defendants’ instruction 30, both dealing with the duty of a pedestrian on a street. Instruction 30 was not applicable as it related to the pedestrian’s duty “before entering the highway.” Number 28 could have been given. However, the court rather fully instructed upon the subject. We see no error in refusing to give this instruction. Defendants’ instruction 19 based on BAJI Number 131 was to the effect that the fact of accident alone raises no inference of negligence. The substance of this instruction was covered by the other instructions given. Moreover, this is the type of instruction, the refusal to give which was held in Stein v. United Railroads, 159 Cal. 368 , 373 [ 113 P. 663 ], not to be error as “A juror would know that such was the rule without instruction and it would seem absurd to burden the record with a formal statement of a truth so self-evident.”

There was no error in refusing defendants’ instruction 4 to the effect that in considering damages, sentiment and emotion must be eliminated, and defendants’ 9 to the effect that the jury could not include court costs and attorneys’ fees. The court fully instructed on the measure of damages, particularly that only the pecuniary loss could be considered, and giving the matters which could be considered in arriving at the damages. These instructions, like most of the others offered by defendants, contained correct statements of law. However, a court is not required to give every instruction offered by a party nor to instruct in the party’s language.

■4. Alleged Errors.

(a) Accident report.

On cross-examination by defendants of Officer Owens, a witness for plaintiffs, the officer stated that Miss Newton told him that her father “turned from the car to cross the street.” On redirect, he stated, “I think she told me that.” Plaintiffs then confronted him with a written statement he had taken from Miss Newton wherein she said that her father was standing by the car. This statement, over objection, was read into evidence. Plaintiffs were entitled to contradict Owens in this manner. Section 2049, Code of Civil Procedure, provides that a party producing a witness “may contradict him by other evidence,” that is, other than evidence of bad repute. Only that portion which dealt with Miss Newton’s statement as to the position of her father was admissible. But defendants did not specifically object on this ground. They erroneously objected to the statement being used at all. Undoubtedly had the court been requested to confine the admission to the one portion of the statement only, it would have done so. Defendants contend that the report was highly inflammatory in nature. Actually there was nothing in it that was not testified to during the trial. There was no error here.

(b) Police reports.

One of those contretemps which occasionally occur in the trial of eases occurred in connection with three police reports. One of them was Miss Newton’s statement which we have just discussed. The other two were the customary accident report by Officers Owen and Silacci, and a written statement by Mrs. Thomas. The three were identified by Owens and marked defendants’ Exhibit A for identification. Apparently when the jury went into the jury room to deliberate, these statements were inadvertently included with the exhibits in evidence. After the jury had rendered their verdict and been polled, defendants’ counsel asked for the exhibits and then informed the court that exhibit A had been in the jury room. When asked when he became aware of that fact he stated: “I never did become aware of it. I had a hunch after—that we were in chambers, after the jury retired, and 1

5. Damages.

The jury awarded $50,000. Decedent and his wife were each 54 years old. Their life expectancy was 18.09 years. Before taxes his earnings were $6,140 per year and had been increasing yearly. His burial expenses were $1,171.29. He was in good physical condition. He was devoted to his family with practically no outside interests in which his family did not participate. For us to hold the award excessive we must find that it was so large as to indicate passion or prejudice on the part of the jurors. (Holder v. Key System, 88 Cal. App.2d 925 , 940 [ 200 P.2d 98 ].) Also “Another factor to be considered in cases involving damages for loss of a member of a family is that, although damages must be measured by the pecuniary loss to the plaintiffs, in fixing such loss the trier of the fact is not limited to proof of loss in dollars and cents, but may properly consider the pecuniary

The judgment and order are affirmed.

Peters, P. J., and Wood (Fred B.), J., concurred.

A petition for a rehearing was denied January 13, 1956, and appellants’ petition for a hearing by the Supreme Court was denied February 8, 1956.