Charles v. Rice

This is an appeal from an order granting a new trial after a jury returned a verdict in favor of defendant Eiee Brothers. The new trial was granted on the grounds of newly discovered evidence and error at law in the giving of an instruction on unavoidable accident.

Appellant is a corporation engaged in road building. At the time of the accident which gave rise to this action, it was doing road construction work on United States Highway 299, under a contract with the State of California. That highway runs generally east and west and intersects with

We think it unnecessary to state the evidence in detail. It is sufficient to say that on the issue of appellant’s negligence the evidence is sharply in conflict. There is conflict also with respect to appellant’s position that the negligence of Dr. Charles was the sole proximate cause of the accident. Speaking generally, the charge of negligence made against appellant was that during construction it did not perform its duty of care to the traveling public because it failed to maintain sufficient warning devices to warn the public of the sharp declivity along the right-hand edge of the westbound travel lane and in maintaining for its own purposes, close to the edge of the travel lane, a strip of soft material banked up, which if encroached upon by the tires of a traveling car would have a strong tendency to pull the car over the edge. It was charged against Dr. Charles that he did not stop at the stop sign before entering Highway 299 and that he came in at such speed that when he made his left turn he lost control of his car, which then plunged down the steep side of the fill. These contentions were thoroughly explored at the trial through evidence presented by both sides.

The trial court gave an unavoidable accident instruction in the following language:

“In law we recognize what is termed an unavoidable or inevitable accident. These terms do not mean literally that it was not possible for such an accident to be avoided. They simply denote an accident that occurred without having been proximately caused by negligence. Even if such an accident

could have been avoided by the exercise of exceptional foresight, skill or caution, still, no one may be held liable for injuries resulting from it”

Such an instruction was condemned in Butigan v. Yellow Cal Co,, 49 Cal.2d 652 [ 320 P.2d 500 ], The Supreme Court held that since the ordinary instructions on negligence and proximate cause sufficiently show that plaintiff must sustain his burden of proof on these items in order to recover, an instruction on unavoidable accident serves no useful purpose and that such an instruction is confusing because when jurors are told that “in law we recognize what is termed an unavoidable or inevitable accident” they may get the impression that unavoidability is an issue to be decided and that, if proved, it constitutes a separate ground of defendant’s non-liability.

This record presents a situation where, while there was impressive evidence that appellant had failed to maintain adequate safeguards in view of the condition of the road at the point where the accident happened, the evidence supporting appellant’s contention that the negligence of Dr. Charles was the sole cause of the accident was much weaker. Perhaps at this point it would be well to state more fully the evidence as to the driving conduct of Dr. Charles. He was driving his car northerly on Enterprise Eoad, which intersects, but does not cross, Highway 299. The two roads intersect at such an angle that one intending to drive into Eedding must make a sharp left turn down the westbound lane after crossing the center line. There was a short refiectorized barrier on Highway 299 opposite the point where that road was entered from Enterprise Eoad. But aside from this short barrier there was nothing to mark the edge of the road along the fill. It was at a point along this unprotected edge of the dirt embankment that the Charles car overturned. The evidence was conflicting as to whether Dr. Charles stopped before entering Highway 299. The occupants of his car all testified that he did, but directly opposed was an extrajudicial statement made by him in this manner: An investigating officer asked him if he stopped at the stop sign and he replied, “What stop sign.” There was also opinion evidence of a patrol officer based on experiments made after the accident and on marks he saw on the road surface which he attributed to the Charles car that Dr. Charles had not stopped but had come into the intersection at such speed as to make it probable he lost con

It is of course well settled that, on review of an order granting a new trial, a reversal must be based upon a finding that the trial court’s broad discretion has been abused. Certainly, as has often been said, the trial judge is in a position much more advantageous than that of a reviewing court to determine when a new trial ought to be granted.

Since the decision in the Butigan ease it has often been held to be error to give the unavoidable accident instruction where the evidence on negligence is conflicting. Appellant does not dispute this, but argues that the error was nonprejudicial. Here again we have the benefit of the trial court’s examination of that question and the trial court’s determination that the error was prejudicial. We think we ought to accept that decision as one within the proper exercise of discretion. Here again the situation is one where the color and content of a trial as seen and considered by the trial court

The order of the trial court granting a new trial included the ground of newly discovered evidence. It appears that the trial court did not attach great weight to that ground, although feeling that it was a make-weight in favor of the motion.

In support of its contention that it had not been guilty of negligence, appellant presented five principal witnesses, all of whom were employed by the Department of Public Works. One of them, and probably the most important defense witness, was the resident engineer in charge for the state. They all testified as experts to the effect that the road under construction, as it was being maintained at the time of the accident, was safe for public use.

At the trial respondents contended that appellant, in the exercise of due care toward the traveling public, should have maintained along the edge of the road next to the fill either temporary reflectorized posts, or a permanent substantial barrier, or a temporary barrier. The contract did not specifically require these safeguards but generally required the contractor to take all safety precautions reasonably required for public protection. In view of the expert testimony that neither posts nor a barrier were so required, respondents’ counsel sought on cross-examination of these witnesses, and particularly of the resident engineer, to show that after the accident a change order had been made in appellant’s contract requiring a permanent barrier, and that a temporary barrier had been erected. Counsel desired to use the fact that a change order had been made, and that a temporary barrier had been erected, by way of impeachment of the appellant’s witnesses who, as experts, had testified that the roadway under reconstruction by appellant had been kept in a safe condition. (See Hatfield v. Levy Brothers, 18 Cal.2d 798 [ 117 P.2d 481 ], on the admissibility of such evidence for impeachment purposes.) Counsel was unable to elicit information as to who had suggested and who had approved the change order, and as to who had ordered the temporary barrier. During the proceedings for a new trial it was claimed, and the court apparently agreed, that there had been obvious evasion and a lack of cooperation on the part of these expert witnesses. Said the court: “The second point of newly discovered evidence is the State papers. We are persuaded by the affidavits before us, and the trial record, which alone we have power to

All of the evidence presented in support of the motion for a new trial was presented under the claim that it constituted newly discovered evidence, and it appears from the record that the trial court considered it to be such. Appellant argues that it was neither newly discovered nor of sufficient materiality, being principally impeaching in character, to furnish support for the new trial order. Appellant points out that the making of the change order and the installation of the temporary barricade was known prior to trial by counsel for respondents. Respondents argue that although their counsel knew these things they did not know they would be material at the trial and that they became material only when the appellant produced state employees who testified that the road conditions were safe. It was shown also that an effort had been made during the trial to obtain the impeaching evidence but that the attempt failed.

Concerning this impeaching evidence, it may be said first that although a new trial will not ordinarily be granted on the ground of newly discovered evidence where the evidence is merely impeaching in character (People v. McCurdy, 68 Cal. 576 [ 10 P. 207 ]), nevertheless there is no hard and fast rule that such evidence cannot constitute newly discovered evidence of such material character as to support an order granting a new trial.

After hearing arguments in support of and in opposition to the motion for a new trial, the court ruled that the evidence under the circumstances did constitute newly discovered evidence and that counsel for respondents could not be properly charged with lack of diligence. These were matters for the trial court’s determination, and upon this record we cannot reject its rulings.

The record presents error in law which the trial court

Peek, J., and Schottky, J., concurred.

A petition for a rehearing was denied October 5, 1959, and appellant’s petition for a hearing by the Supreme Court was denied November 3, 1959.