Alcorn v. Davies

This is an appeal from a judgment based on a defense verdict in an action brought by Verna H. and William J. Alcorn, husband and wife, to recover damages for personal injuries to Verna and property damage suffered by William when Verna was struck by a jeep driven by Frederick Chester Davies.

Appellants contend that the evidence is insufficient to sustain the verdict and that the court erred in giving certain instructions and in refusing to give an instruction requested by appellants.

Having in mind first the contention that the evidence was

On October 6, and 7, 1956, plaintiffs and appellants were hunting guests of respondent Frederick Davies and his wife at their mountain cabin located about 10 miles west of the crossroads town of Paskenta in western Tehama County. Plaintiffs were San Franciscans and had known the Frederick Davies for about 12 years. On October 7th the plaintiffs concluded their deer hunting and left the cabin to return to San Francisco. Their course ran in a general easterly direction on a dirt road. When they reached a point less than two car lengths south of the bridge across Bennett Creek they stopped their car in such a position that the left half was still on the traveled roadway. Shortly thereafter an automobile containing unknown persons, who have never been located or identified, stopped on the road opposite the plaintiffs’ vehicle, with their car headed in the same direction. The road at this point is approximately 14 feet wide. At the left or westerly side of the road was a ditch or gulch and the strangers’ car stopped about one foot therefrom. The two cars were only 4 or 5 feet apart and prevented the passage of other vehicles. While the cars were so parked appellants stood in the middle of the road, talking to the strangers. This situation had lasted for five to ten minutes when defendant Frederick Davies, accompanied by his wife, drove his jeep down the steep grade in low gear, intending to cross the Bennett Creek bridge and continue on to the Davies ranch home east of Paskenta. Davies stopped momentarily on a sharp turn some 360 feet south of the bridge. He looked down toward the bridge and saw what he described as the “block,” consisting of the two stationary cars near the bridge and the appellants standing on the roadway space between the cars. As Davies had come down the road the brakes on his jeep worked perfectly and enabled him to stop at the point where he observed the block. He then proceeded slowly down the grade toward the stopped vehicles and when about 40 feet distant therefrom and while going at a speed of about four miles per hour he applied his foot brake, intending to stop at that point. He pumped the brake pedal several times, but there was no response whatever. The jeep was entirely without brakes. He was unable to go to his left because of the drainage ditch. Immediately ahead of him on the road were the two ears with appellant William Alcorn standing between. Davies applied his hand brake and turned his jeep

Mrs. Alcorn described the accident as follows -. The Alcorns were driving a 1953 Plymouth station wagon. No one else

Mr. Alcorn essentially and substantially corroborated Mrs. Alcorn’s description of the accident.

The jury could, of course, accept respondent Davies’ testimony to the effect that his brakes suddenly went out when he attempted to stop about 40 feet south of the standing vehicles; that the brake failure was caused by the defective condition of the hose connection which resulted in a splitting of the hose and the release of the brake fluid. They could accept his further testimony of the care he had taken to maintain his brakes in good condition as excusing his failure to obey the.statute requiring him at all times while operating his jeep on the highways to have it equipped with the braking facilities required. Conduct which will excuse a violation oE statutory duty has been thus described by the Supreme Court in Alarid v. Vanier, 50 Cal.2d 617 , 624 [ 327 P.2d 897 ] :

“In our opinion the correst test is whether the person who has violated a statute has sustained the burden of showing that he did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law.”

Applying this test and accepting Davies’ explanation of the way in which the accident happened the jury could

Appellants are correct in their contentions that errors were committed in giving instructions requested by respondents. The court gave the unavoidable accident instruction condemned in Butigan v. Yellow Cab Co., 49 Cal.2d 652 [ 320 P.2d 500 ], and in Alarid v. Vanier, supra. The court instructed the jury that: “The mere fact that an accident happened, considered alone, does not support an inference that some party, or any party, to this action was negligent. ’ ’ The uncontradicted evidence here warranted the application of the doctrine of res ipsa loquitur and it was error to give the quoted instruction. (Alarid v. Vanier, supra, p. 625.) And as stated in Alarid v. Vamier, supra:

“. . . For the reasons set forth in the cited cases holding it is error to give the mere happening of the accident instruction where an inference of negligence arises as a matter of law, it is likewise error to give that instruction where a presumption of negligence arises as a result of defendant’s disobedience of a statute.”

Accepting Davies’ explanation of the accident as occurring from defective brakes, a presumption of negligence arose from violation of statutory duty.

The trial court also at respondents’ request instructed the jury on the doctrine of assumption of risk. The instruction read as follows: “We have a legal principle commonly referred to by the term ' assumption of risk.’ It now will be explained to you: A person is said to assume a risk when she freely, voluntarily and knowingly manifests her assent to dangerous conduct or to the creation or maintenance of a dangerous condition, and voluntarily exposes herself to that danger, or when she knows that a danger exists in either the conduct or condition of another, or in the condition, use or operation of property, and voluntarily places herself, or remains, within the area of danger. A person who thus assumed a risk is not entitled to recover for damage caused her without intention and which resulted from the dangerous condition or conduct to which she thus exposed herself.”

Prosser (Torts, 2d ed., p. 303) says:

“The defense of assumption of risk rests upon the plaintiff’s consent to relieve the defendant of an obligation of conduct