Sweeney v. Pozarelli

Plaintiffs Sweeney, husband and wife, appeal from an adverse judgment following jury trial of their action for damages for personal injuries alleged to have been received through negligence of defendants Albert Pozarelli and Hugh Neville in “a three-way rear end automobile accident” (quoting pretrial conference order).

The accident happened in Los Angeles on the Hollywood Freeway near the main interchange, the three ears being in the middle lane and headed easterly. The other two cars were following that of Sweeney and in immediate sequence. Plaintiffs’ Cadillac was first, Pozarelli’s Volkswagen next, followed by Neville’s Ford. Traffic was heavy and was “stop and go” or “slow and go.” The joint pretrial statement says that “plaintiffs’ automobile came to a stop behind other stopped traffic and was struck from the rear by a Volkswagen being driven by defendant, Albert Pozarelli. Said Volkswagen was either simultaneously, or thereafter, struck from the rear by a 1957 Ford being driven by defendant, Hugh Neville.”

The principal question presented on this appeal is whether there was substantial evidence of contributory negligence on the part of Sweeney and whether it was reversible error for the court to charge the jury upon that subject.

The whole line of cars was traveling at speed variously estimated by the witnesses as 25 to 35 miles an hour. It appears without conflict that the traffic ahead of Sweeney stopped abruptly; the nearest car ahead of him was between

Defendant Pozarelli testified that his maximum speed before the accident was 25 to 30 miles; he saw the Cadillac stop when about the length of an American car away from him; when that vehicle stopped its rear lights flashed but plaintiff gave no hand signal; when the witness saw the flash of those rear lights he put on his own brakes but had no opportunity to give a hand signal; his wife (in the seat beside him) fell forward striking and cracking the windshield; his car stopped about a foot behind the Cadillac and did not then strike it; almost immediately after that he heard the brakes or tires of the Ford squealing, could not do a thing and was hit in the rear by the Ford, his car being pushed into the Cadillac.

Defendant Neville said he saw the Cadillac and the Volkswagen making a few stops in the “stop and go” traffic prior to reaching the scene of the accident; when it occurred he was two car lengths behind the other cars and saw the impact ; the Cadillac was stopped at the time it was hit and that was all he saw; he did not see it slow down or stop; the Volkswagen ran into the back of it but was not going very fast and he, Neville, was then about two car lengths behind it going about 15 miles an hour; when he saw that impact he stepped on his own brakes and did not hit the Volkswagen but “I touched him”; that made hardly any noise and did not move the Volkswagen.

What is there in this factual picture to suggest or prove contributory negligence on the part of Hr. Sweeney? His speed—25 to 30 miles—was necessarily governed by that of the vehicles ahead of him and behind him and that was the speed at which they were traveling. Defendant Neville testified that the Volkswagen was not going very fast and “none of us were.” The suggestion that the jury could have

Defendant Neville did not see the Cadillac stopping nor pay any attention to its driver before he saw it at a full stop. “At the time of the accident it was stopped and then that’s all I saw.”

We find no basis here for an inference that a hand signal was necessary to the exercise of due care by plaintiff or that failure to give one affected or could affect the conduct of either defendant driver and operate as a proximate cause of the accident.

So far as defendants are concerned, it may properly be observed that “The mere fact that a driver of a vehicle does run down the vehicle ahead of him furnishes some evidence that he either was driving at too high a rate of speed, or that he was following too closely the vehicle ahead of him (Gornstein v. Priver, 64 Cal.App. 249 [ 221 P. 396 ]; Rodriguez v. Savage Transportation Co., 77 Cal.App.2d 162 [ 175 P.2d 37 ]; Linde v. Emmick, 16 Cal.App.2d 676 [ 61 P.2d 338 ].) ” (Apodaca v. Haworth, 206 Cal.App.2d 209 , 215-216 [ 23 Cal.Rptr. 461 ].) Indeed an inference of negligence (res ipsa loquitur) arises against such driver, an inference that he is the one responsible for the accident (Ponce v. Black, 224 Cal.App.2d 159 , 162-163 [ 36 Cal.Rptr. 419 ]; Pacific

Perhaps the testimony of Neville and his wife that his car merely touched the Volkswagen and did not push it into plaintiffs’ Cadillac, when credited by the jury, would have been sufficient to dispel the presumption against him were it not for the fact that it is opposed to the pretrial order and joint statement of counsel. The former says: “This is a personal injury case resulting from a three-car rear end automobile accident. ...” Also that Pozarelli contended that “he was required to and did stop and was then hit in the rear by the vehicle of the defendant Neville and was thereby pushed into the plaintiffs’ vehicle”; that Neville contended “that he did not have reaction time within which to bring his vehicle to a stop before impact” with Pozarelli’s car. The joint statement says that plaintiffs’ car was struck by Pozarelli’s Volkswagen and that it, the Volkswagen, “was either simultaneously, or thereafter, struck from the rear by a 1957 Ford being driven by defendant, Hugh Neville.” Also that “Hugh Neville was the owner and operator of a 1957 Ford which struck the said Volkswagen from the rear.”

“It is settled that, when filed, a pretrial conference order, unless modified at or before trial, supersedes the issues raised by the pleadings and controls the subsequent course of the case. [Citations.] The pretrial order limits the issues to be tried [citation] and those issues, neither raised at the

Aside from the foregoing Neville is still confronted with the absence of any showing of proximate negligence of plaintiff.

That it is prejudicial error to instruct on contributory negligence where there is no substantial evidence to support that plea is settled law. (Burks v. Blackman, 52 Cal.2d 715 , 719 [ 344 P.2d 301 ] ; Shippy v. Peninsula Rapid Transit Co., 197 Cal. 290 , 296 [ 240 P. 785 ].) The court erred in giving such instructions at bar and this requires a reversal as to both defendants.

Respondent Pozarelli would sustain the judgment upon the alternative ground that “there was no substantial evidence that either appellant suffered any injury or damage as a result of said collision. ’ ’

The exhibits having been returned to the parties they are not before us and the oral evidence is not clear as to whether there was serious damage to any of the automobiles. However, plaintiff testified that the whole chassis of his car was about an inch off the ground; that the vehicle was worth $7,500 before the accident and he did not repair it but sold same for $3,900. It also appears that the repair bill on Pozarelli’s car was $171.66 and covered items such as “replace chrome tailpipe tip,” “straighten rear bumper and alignment, straighten brackets and supports. ”

The argument proceeds upon the hypothesis that the jurors may reject the testimony of any witness, wholly or in part, and that that is what happened to the testimony of both plaintiffs. However, if we concede that this was done in this case and not done arbitrarily, the testimony of Dr. Lopez remains. His examinations of plaintiffs, made promptly after the accident, reveal tenderness and spasm and limitation of motion in the shoulder of Mr. Sweeney, also tenderness in the abdomen and aggravation of a quiescent lower urinary in

Mrs. Sweeney testified she was knocked from the seat almost to the floor, her head hit the dashboard and she then fell to the floor; when almost back in the seat their car was hit again and she went down a second time; she felt shaken up; the “next day I woke up very sore all over, and, and if I remember right, I had a headache that day and I didn’t feel good at all, so I decided to see the doctor”; her back and neck hurt a lot; if she “stood any amount of time it hurt bad. I had to sit down.” Dr. Lopez’s diagnosis was given by him as follows: “ It was a diagnosis of shock. The second one was a certain condition called a cervical syndrome, traumatic. This affects the spinal column and the surrounding soft tissues in that area, blood vessels, ligaments, nerves, etc.

“The third one was fibrocystitis and myositis. That’s inflammation or irritation of the tissues surrounding the spinal column from the second level in the neck, second vertebra in the neck, down to the second vertebra in the chest and also lower down from the fifth to approximately the tenth to twelfth vertebral level in the back and also from, apparently, the first lumbar vertebra to the second sacral vertebra. That’s in the lower back, sir.” The doctor gave her sedation, neck traction, heat treatments to the back and neck and she wore a neck collar for about two months; her headaches were persistent for a long while.

Kespondent relies on the testimony of Dr. Donald Cass who examined each plaintiff on behalf of defendant, and counsel argues that his testimony belies that of Dr. Lopez and of plaintiffs and the jurors were entitled to reject the same and presumptively did so.

Dr. Cass testified that he examined the plaintiffs on May 19, 1961, which was some nine months after the accident. His diagnosis as to Mrs. Sweeney was that she “had recovered from the effects of any injury she may have sustained and that her symptoms were entirely subjective.

“Q. What do you mean by subjective?

“A. They weren’t backed up by any objective changes; that is, the story of the patient is the subjective statement. The physical examination, the changes that the doctor finds are objective.” As to Mr. Sweeney Dr. Cass said his di

“ Q. What is that, sir ?

“A. Well, the pelvis of the kidney is the funnel that the urine collects in before it goes down to the bladder, and inflammation of this part of the kidney is called pyelitis and the pyelonephrosis would be that he has an infectious disease, a chronic disease, of his kidneys. He has bacteria in his urine and he also has pus in his urine, so that he still has a disease and his history is that he has had it all his life” and that such a chronic disease could not be caused or aggravated by an accident. Also, “I thought that he had recovered from the effects of any injury he may have sustained. ’ ’

Although there was considerable self-contradiction in the testimony of Edmund Sweeney and a lesser amount in that of his wife and they were impeached in certain respects, the circumstances indicate that plaintiffs in all probability did receive the falls and blows and soreness and aches and pains they described; whether they were serious injuries or later developed serious aspects is aside from the question of whether plaintiffs received compensable injuries. And the fact that some of their symptoms were not objective but strictly subjective falls far short of proof that they were unreal.

Reznick v. Hillman-Sidney Auto Sales, 216 Cal.App.2d 569 , 572 [ 30 Cal.Rptr. 889 ]: “This court, speaking through Mr. Presiding Justice Moore in Sandoval v. Southern Cal. Enterprises, Inc., 98 Cal.App.2d 240 , 255 [ 219 P.2d 928 ] said '[i]t is a scientific truism that the extent of personal injuries cannot be measured solely by objective signs. While traumatic injuries may leave few or no outward signs of bruises and contusions, yet a severe concussion of the brain or “injury to the nervous system may result in far greater or more lasting pain and disability than do many types of injuries which are plainly visible. ” [Citations.] ’

“In the cited Coleman case [ 66 Cal.App.2d 303 ( 152 P.2d 39 )] Mr. Justice Spence spoke for the court as follows, at page 305-306: ‘Defendant makes much of the fact that there were no serious fractures of the bones in plaintiffs’ bodies. He also calls attention to the fact that the remaining signs of the injuries at the time of trial, which was held one year later, were largely subjective rather than objective. From these facts he argues that only very small awards would have been justified and that the actual awards were therefor excessive. While the facts to which defendant refers have some

While judges and juries may reject all or portions of a witness’ or of several witnesses’ testimony they can do so only when acting reasonably. “But the trier of fact is not entitled, arbitrarily or upon mere caprice, to disregard uncontradicted, entirely probable testimony of unimpeached witnesses.’’ (Mantonya v. Bratlie, 33 Cal.2d 120 , 127 [ 199 P.2d 677 ].) See also: Gomez v. Cecena, 15 Cal.2d 363 , 366 [ 101 P.2d 477 ]; McVey v. McVey, 132 Cal.App.2d 120 , 123 [ 281 P.2d 898 ]; Krause v. Apodaca, 186 Cal.App.2d 413 , 417 [ 9 Cal.Rptr. 10 ], To hold that the jury reasonably could have concluded that plaintiffs suffered no compensable injuries in this accident would be wholly unwarranted by the evidence in this case.

As the errors just reviewed were fatal to the judgment there is no occasion to discuss other questions posed by respective counsel.

Judgment reversed.

Herndon, Acting P. J., and Roth, J., concurred.

The petitions for a rehearing were denied August 17, 1964, and respondents’ petitions for a hearing by the Supreme Court were denied September 18, 1964.