Gibson v. State

The State of California appeals from a judgment in a wrongful death action in the Superior Court of Monterey County in favor of plaintiff in the sum of $5,000

After Lyons’ signal to Hummel, the ambulance carrying plaintiff’s 77-year-old mother came into view. There is testimony that it was on a nonemergency run and was travelling about 45 miles per hour. Sanchez, the driver, testified that he saw no “Men and Equipment” sign at the west end of the job; that he slowed to 35 miles per hour as he passed Lyons ; that he moved into the westbound lane in order to avoid Lyons; that Lyons had the paddle by his side but did not signal with it; that he saw about five pieces of equipment on the shoulder to his right and that just as he was passing the last of them the dump truck pulled out, turned without any signal and hit the ambulance’s right side, swung it around and onto the shoulder where it hit some slippery material and was thrown into a roll. There were no skid marks. The dump truck was stopped at the point of impact and the ambulance after rolling over one and a half times rested on its top about 96 feet from point of impact. The decedent, thrown from the ambulance, subsequently died from injuries received.

The trial court refused an instruction containing the substance of said section as requested by the state but in addition to the routine negligence instructions gave an instruction purporting to quote the provisions of Vehicle Code, section 544 (now §§ 22107-22109), proscribing a turn upon a roadway until it can be made with reasonable safety, without limiting its application to defendants other than the State of California and proceeded with BAJI149, revised, instructing the jury that a violation of a statute gives rise to a presumption of negligence. The combined effect of these instructions was to permit the jury to rest its finding of liability as against the state upon negligence per se. The Yarrow decision, supra, holds that section 453, subdivision (b) (now § 21053), relieves the state from per se negligence but that the duty of care owed to a particular plaintiff by the operator of a publicly owned vehicle coming within the terms of said section must be determined from the facts of each case under the ordinary

An erroneous instruction is not prejudicial when the record discloses that, without the error, the jury would in all reasonable probability have returned the same verdict. (Shuey v. Asbury, 5 Cal.2d 712 [ 55 P.2d 1160 ].) But where an appellate court cannot determine to what extent an erroneous instruction influenced a jury in arriving at a verdict, such error is material and requires reversal. (Dutcher v. Santa Rosa Sigh Sch. Dist., 137 Cal.App.2d 481 , 485 [ 290 P.2d 316 , 291 P.2d 557 ].) Where there is a substantial conflict in the evidence material to a major issue to which an erroneous instruction may be addressed it is difficult to conceive circumstances in which an appellate court may determine with any reasonable certainty that the erroneous instruction did not influence, if not control, a finding based upon such erroneous instruction. Where, as in the instant case, liability on the part of the state may be predicated only upon common-law negligence and there is substantial evidence that would support a finding that under the circumstances of the particular work in progress the state and its employees had exercised due care, it cannot be said that the verdict was not based upon a finding of negligence per se. The question as to whether or not the truck driver in the exercise of ordinary care in making the particular turn was entitled to rely upon the warnings posted or signals given by the highway crew may have been considered by the jury under the routine negligence instructions. But in view of the truck driver’s testimony that, because of the exigencies of the situation, his attention was solely directed forward and easterly from the time he received the signal to commence his turn from the subforeman controlling traffic from the west, it is eminently probable that the jury based its verdict upon the erroneous instruction that a presumption of negligence arose from his seemingly manifest violation of Vehicle Code, section 544. The argument that the error is not prejudicial because section 544 may be considered as doing no more than establishing a standard of care for determining ordinary negligence cannot be sustained. It is true that Clinkscales v. Carver, 22 Cal.2d 72 [ 136 P.2d 777 ] held that, where a boulevard stop sign had been posted under a defective ordinance, the mere fact that such defect absolved a violator from criminal liability did not prevent the violation from being considered per se negligence in a civil suit for damages. But no

The remaining issues need be discussed but briefly. Appellant’s contention that it was error to reject evidence that funeral expenses were paid by the decedent’s estate is not sound. To the extent that plaintiff was heir or beneficiary under decedent’s will, he suffered the loss of money paid out by the executor for funeral expenses (Adams v. Southern Pac. Co., 4 Cal.2d 731 [ 53 P.2d 121 ] ; Robison v. Leigh, 153 Cal.App.2d 730 [ 315 P.2d 42 ]). A second contention that a judgment of $5,000 of which some $1,300 may be ascribed to burial expense, is excessive and unsupported by evidence is also unsound. The respondent testified that decedent helped him with advice on finance, taxes and in running the household. He was a single man, living with his mother. An allocation of $3,700 for the loss of comfort and society is not so large as to suggest passion, prejudice or corruption on the part of the jury or shock the conscience (Weaver v. Shell Company, 34 Cal.App.2d 713 [ 94 P.2d 364 ] ; Daggett v. Atchison, T. & S. F. Ry. Co., 48 Cal.2d 655 [ 313 P.2d 557 , 64 A.L.R.2d 1283 ]).

The judgment is reversed.

Kaufman, P. J., and Draper, J., concurred.

A petition for a rehearing was denied September 21, I960, and respondent’s petition for a hearing by the Supreme Court was denied October 19, 1960.