Rodriquez v. Lompoc Truck Co.

Plaintiffs, two injured and the heirs of one killed in a collision with defendants’ truck, appeal from judgment entered on a jury verdict in favor of defendants. The issues relate primarily to certain instructions.

We construe the evidence and all reasonable inferences therefrom most strongly in favor of respondents. (Grainger v. Antoyan, 48 Cal.2d 805 [ 313 P.2d 848 ]; Juchert v. California Water Service Co., 16 Cal.2d 500 [ 106 P.2d 886 ].) Plaintiffs were passengers in a 1951 Cadillac driven by Earl Sievers, not a party herein. None of the plaintiffs testified concerning the collision; they rely entirely upon the testimony of Sievers who was their only eyewitness. Having been on a trip together, plaintiffs and Sievers, on October 10, 1960, were returning north on Highway 101 to their homes in San Francisco when they had a blowout of the right-rear tire. They had a flat tire the night before in Los Angeles, but failed to have it repaired; Sievers had no spare. He pulled off

Around 1:15 p.m. defendant Nunnelee was driving a truck with two trailer attachments in the right or slow lane, also going north. As he rounded a curve he first saw, some 300 to 500 feet ahead, the Cadillac traveling in the left or fast lane going what be thought to be about the same speed as his truck. The truck was going from 48 to 50 miles an hour; it

One Wilkinson, northbound behind the truck, witnessed the accident; he saw the Cadillac traveling in the left fast lane, then suddenly cut over into the right lane directly in front of the truck.

Jones, a tire expert, examined the flat tire in the Cadillac trunk (the first flat Sievers had in Los Angeles) and determined it could have been repaired with only minor effort. He also examined the flat tire on the Cadillac at the time of the accident and testified that it contained a double tube; that the blowout was caused by the outer tube rubbing against the road through a small portion of the tire which had worn out exposing a thin layer of ply fibers and the outer tube; that the outer and inner tubes revealed that the Cadillac was driven on the flat tire 10 to 25 miles—based on the fact that the tube, made of natural rubber, a strong material, required at least 10 miles of flat riding before it could become as shredded as it was; that the tire and rim were not as dam

Harper, a physicist, examined the tire marks on the highway and correlated them with various parts of the Cadillac and truck; he found the physical evidence (damage to the vehicles and debris at the scene) to be consistent with the testimony advanced by both sides.

Around 1 p.m., Ernest Costa, a laborer in a beanfield near the highway, heard an unusual thumping sound, like that of a car going by with a flat tire at “a pretty fast rate of speed,” coming from the northbound lane of the highway; he then proceeded to the scene of the accident where he saw the Cadillac with the flat tire.

The main evidence pointing to how the collision occurred— the lane in which plaintiffs traveled, how fast Sievers drove, how far they rode on the flat tire and whether the Cadillac swerved in front of defendants’ truck—is in irreconcilable conflict. The only undisputed fact concerning the accident is that defendant Nunnelee was at all times traveling in the slow right lane where the collision occurred. Among the four occupants of the Cadillac only Sievers testified; there were no other eyewitnesses who testified except defendant Nunnelee and Wilkinson. Plaintiffs’ version of the accident is based on Sievers’ testimony that he drove the Cadillac in the slow right lane, partly on the shoulder, in slow gear at a speed of 5 to 8 miles per per hour for approximately 7/10ths of a mile; that he first saw defendants' truck in his rear-view mirror when the truck was 400 or 500 yards behind him, just rounding a curve; that a little later he saw the truck several car lengths behind and motioned defendant Nunnelee to pass; and that when he glanced in his mirror a third time he saw defendants’ truck, which had not slackened its speed, upon him and the impact occurred from the rear without warning. While Sievers, a Mr. Kutbach and a highway patrolman testified that Nunnelee, after the accident, said he had not seen the Cadillac, Nunnelee denied making such a statement.

After hearing the two versions the jury, as it had a right to do, rejected Sievers ’ story and accepted as true the testi

There is no merit to appellants’ first contention that neither the pleadings nor the evidence supports the instructions on contributory negligence. The issue of imputed negligence having been abandoned (the jury was properly instructed that the negligence, if any, of the driver of the Cadillac cannot be imputed to the passengers), and contributory negligence having been specifically and properly made a separate defense in the pretrial order (People ex rel. Dept. Public Works v. Valley Drive-In Theater Corp., 206 Cal.App.2d 309 , 314 [ 23 Cal.Rptr. 626 ]), defendants were entitled to an instruction thereon if the record shows “slight or, at least, some evidence upon the issue.” (Miller v. Western Pac. R. R. Co., 207 Cal.App.2d 581 , 590 [ 24 Cal.Rptr. 785 ].) “ ... [I]n order to find that the giving of any certain instruction was not warranted by the evidence, the court must find that, as a matter of law, there is in the record not even slight or inconclusive evidence on the point covered by the instruction.” (Washington v. City & County of San Francisco, 123 Cal.App.2d 235 , 238 [ 266 P.2d 828 ]; see also MacLean v. City & County of San Francisco, 151 Cal.App.2d 133 [ 311 P.2d 158 ].)

Viewing the evidence in a light most favorable to defendants, who offered the instructions {Sills v. Los Angeles Transit Lines, 40 Cal.2d 630 , 633 [ 255 P.2d 795 ]), we find in the record sufficient substantial evidence to support defendants’ theory of contributory negligence. (Hook v. Point Montara Fire etc. Dist., 213 Cal.App.2d 96 , 99 [ 28 Cal.Rptr. 560 ].) Appellants’ argument in this connection is purely partisan, predicated on Sievers’ testimony; but the evidence, considered in the light of the above rules, points not only to the negligence of Sievers but to the negligence of plaintiffs themselves. This conclusion is based, not upon imputation of Sievers ’ negligence (there is no evidence to support a finding thereon), but upon their own conduct in riding with Sievers in the Cadillac from the time they had the flat tire up to the moment of collision. “ Even when negligence of a driver may not be imputed to him, the passenger is bound to exercise ordinary care for his own safety. He may not shut his eyes to the obvious danger; he may not blindly rely on the

“The doctrine of assumption of risk is based on the theory that there has been a voluntary acceptance of a risk, and such acceptance, whether express or implied, requires knowledge and appreciation of the risk.” (Hayes v. Richfield Oil Corp., 38 Cal.2d 375 , 384 [ 240 P.2d 580 ]; Prescott v. Ralphs Grocery Co., 42 Cal.2d 158 , 161-162 [ 265 P.2d 904 ]; see Rest., Torts, § 893, p. 491; Prosser on Torts (2d ed. 1955) §55, pp. 303-314:) This theory is different from that upon which contributory negligence is predicated. “ ‘The defenses of assumption of risk and contributory negligence are based on different theories. Contributory negligence arises from a lack of due care. The defense of assumption of risk, on the other hand, will negative liability regardless of the fact that plaintiff may have acted with due care. ... It is available when there has been a voluntary acceptance of a risk and such acceptance, whether express or implied, has been made with knowledge and appreciation of the risk. ... Where the facts are such that the plaintiff must have had knowledge of the hazard, the situation is equivalent to actual knowledge, and there may be an assumption of the risk, but where it merely appears that he should or could have discovered the danger by the exercise of ordinary care, the defense is contributory negligence and not assumption of the risk.’ (Prescott v. Ralphs Grocery Co., 42 Cal.2d 158 , 161-162 [ 265 P.2d 904 ].)” (Austin v. Riverside Portland Cement Co., 44 Cal.2d 225 , 235 [ 282 P.2d 69 ]; Hayes v. Richfield Oil Corp., 38 Cal.2d 375 , 384 [ 240 P.2d 580 ].)

“It is now well established in California that the doctrine of assumption of risk has two requisite elements: (1)" Knowledge and appreciation of the danger involved by the person in question; and (2) his voluntary acceptance of the risk. (Gomes v. Byrne, 51 Cal.2d 418 , 420 [ 333 P.2d 754 ]; Prescott v. Ralphs Grocery Co., supra, at p. 162.) It is also firmly established that such knowledge must be actual knowledge. (Hayes v. Richfield Oil Co., supra, 38 Cal.2d 375 , 385; Prescott v. Ralphs Grocery Co., supra, at p. 162; Gomes v. Bryne, supra, at p. 421; Guerrero v. West gate Limber Co., 164 Cal.App.2d 612 , 618 [ 331 P.2d 107 ]; Martin

Under the evidence in this ease the defense of assumption of the risk can arise, if at all, only from defendant Nunnelee’s version of the accident; and while it reveals that plaintiffs must have known and appreciated their position in riding in an unsafe car disabled by a flat tire, out in the fast lane of traffic in a two-lane highway going, at what under the circumstances was, an excessive speed, it shows neither the hazard, danger or risk to which plaintiffs were subjecting themselves, and for which defendants were responsible, nor that plaintiffs had knowledge or appreciation of any such danger. As to what plaintiffs were assuming, was it the risk incident to Sievers’ negligent conduct? If so, this might be a defense to an action against Sievers, but Sievers is not a defendant herein. Was it then a risk incident to defendant Nunnelee’s negligent conduct? But again, Sievers’ testimony, which would warrant a finding of defendants’ negligence, shows no facts material to the defense of assumption of the risk; on the other hand, defendant Nunnelee’s testimony shows no negligence on his part.

The defense is predicated on “the plaintiff’s consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of harm from a particular risk.” (Prosser on Torts (2d ed. 1955) p. 303), the theory being that defendant’s conduct involves certain danger of risk which plaintiff voluntarily accepts. (Morton v. California Sports Car Club, 163 Cal.App.2d 685 [ 329 P.2d 967 ]; Hawk v. City of Newport Beach, 46 Cal.2d 213 [ 293 P.2d 48 ].) Thus, 1 ‘ [A] ctual knowledge of the existence of a specific danger is an essential and indispensible element of the defense of assumption of risk.” (Guerrero v. Westgate Lumber Co., 164 Cal.App.2d 612 , 618 [ 331 P.2d 107 ]; Hook v. Point Montara Fire etc. Dist., 213 Cal.App.2d 96 , 101 [ 28 Cal.Rptr. 560 ].) See also Bee v. Tungstar Corp., 65 Cal.App.2d 729 [ 151 P.2d 537 ]; Hidden v. Malinoff, 174 Cal. App.2d 845 [ 345 P.2d 499 ]; Griffin v. Irelan, 194 Cal.App.2d 844 [ 15 Cal.Rptr. 306 ]; Garber v. Prudential Ins. Co., 203

The evidence not being sufficient to warrant instructions on assumption of the risk, it was error to instruct thereon. Whether it was prejudicial to the rights of plaintiffs must be determined in the light of the unusual factual situation pre

Our conclusions render it unnecessary to consider the other assignments of error set out in appellants’ opening brief. Por the foregoing reasons the judgment is reversed.

Wood, P. J., and Pourt, J., concurred.

A petition for a rehearing was denied July 6, 1964, and respondents’ petition for a hearing by the Supreme Court was denied August 5, 1964.