Hilts v. County of Solano

the intersection of Midway and Bulkley Roads in Solano County, between a three-axle cattle truck and trailer rig driven by Wallis and owned by Valley and a panel truck driven by decedent. The cattle truck had been proceeding east on Midway and the panel truck had been moving north on Bulkley. Decedent was dead when California Highway Patrol Officer Blasingame arrived at the scene of the accident.

On the date of the accident the intersection of Midway and Bulkley formed a curve to the north and west; Bulkley jogged to the west so that its northern extension beyond the intersection was to the west of the southerly portion of the street. Midway was 20 feet wide west of the intersection and 16 feet wide east of it, while Bulkley was 20 feet wide south of the intersection, widened to 24 feet around the curve in the intersection, and then narrowed to 18 feet north of the intersection. There were broken white lines down the middle of Bulkley on both sides of the intersection and on Midway there were no markings east of the intersection and broken white lines west of the intersection, these lines becoming solid yellow lines near the intersection. The only control device in the intersection was a stop sign north of the intersection controlling southbound traffic on Bulkley. There were intersection warning signs west of the intersection on Midway and on both sides of the intersection on Bulkley. However, these signs did not depict the peculiar shape of the intersection. Further, there was a black and white directional sign on Bulkley 500 feet south of the intersection, this sign indicating that Sacramento was 22 miles straight ahead, Dixon was 7 miles to the left, and Tolano was one mile to the right. Next to this directional sign was a curve sign. The bulk of the traffic in the vicinity of the intersection traveled on Midway eastbound to Bulkley and then south on Bulkley; relatively few vehicles went straight through the intersection on Midway.

There were English walnut trees growing along the south edge of Midway and the east edge of Bulkley in and near the intersection. The testimony of witnesses differed somewhat as to the extent to which these trees affected visibility. Wallis testified that the trees interfered with his vision but that he could see traffic with difficulty at some point within 200 feet of the intersection. Ferguson, Assistant Deputy Director of Operations in the Department of Public Works for Solano County, testified that the trees permitted visibility of oncoming traffic for about 400 feet on either side of the intersection because the foliage of the trees starts about twelve to fourteen

however, see the vehicle for the last one and one-half blocks south of the intersection. He testified that both vehicles entered the intersection at the same time.

There was no testimony as to the manner in which decedent had been driving prior to the accident except for the testimony of Higby that he had been driving 50 to 55 miles per hour a block and a half south of the intersection (i.e., within the speed limit applicable to him). Mrs. Hilts testified that decedent was very familiar with the intersection.

Gordon Webster, who lived one and one-half blocks from the site of the accident, testified that he knew of at least a dozen accidents that had occurred in that intersection although he had not actually witnessed any of these accidents ; that he had complained to Ferguson three or four times over a one-year period prior to the accident involved in the instant case; that he told Ferguson to put in a stop sign; that although the stop sign controlling southbound traffic was put in, it did not help; and that he told someone to put the sign on the south side of the intersection (controlling northbound traffic) instead. Ferguson testified that he recalled Webster complaining to him about the intersection at least twice but did not remember what they talked about with reference to stop signs, and further testified that he has no jurisdiction over signs. In 1965 (after the accident) Ferguson recommended that a stop sign be put in the intersection because of a barley crop obstructing visibility, and a stop sign was in fact put in for northbound traffic on Bulkley.

Faustman testified that the intersection as it existed in 1964 was potentially a hazardous intersection and constituted a trap for the motorist. He stated that visibility was obstructed due in part to differences in elevation between roadway grades and adjoining fields, and in part to the presence of the walnut trees; that the intersection should have been physically redesigned; and that some advance warning signs should have been erected. He estimated that it would cost less than $1,000 to straighten out one of the intersecting streets. Faust-man also illustrated various ways of striping the intersection to make it safer with respect to the way that traffic meets at the curve. Finally, he testified that from the standpoint of maintenance, operation and repair, counties should inspect primary roads such as Midway and Bulkley from time to time as a matter of traffic safety.

Appeal of the County of Solano

Was it Error to Admit Evidence of Prior Accidents Occurring at the Intersection Without Showing Similarity to the-Instant Accident ?

No. Over the objection of County, the court permitted Webster to testify, as noted, that there had been several accidents at the intersection of Midway and Bulldey. On cross-examination by County the witness admitted that he had not actually seen any of the accidents occur and was not sure when they happened or how many there were, and further stated that in some of them intoxication of the drivers might have played a part. County contends that the admission of this evidence constituted reversible error, relying on Wilkerson v. City of El Monte, 17 Cal.App.2d 615 , 620-621 [62 P.2d-790], wherein the court stated that evidence of prior accidents is inadmissible to show the dangerous condition of an intersection unless there is evidence as to the cause of said prior accidents, and Martindale v. City of Mountain View, 208 Cal.App.2d 109 , 116 [ 25 Cal.Rptr. 148 ], in which the court stated that evidence of prior accidents is admissible to prove the existence of a dangerous condition provided that these accidents occurred under circumstances substantially similar to those of the accident for which recovery is sought. (See also Kopfinger v. Grand Central Public Market, 60 Cal.2d 852 , 860-861 [ 37 Cal.Rptr. 65 , 389 P.2d 529 ].)

We note, initially, that County is barred from raising the point on appeal because it has waived its right to complain that the receipt of this testimony was error. When counsel for plaintiffs first attempted to question Webster about the prior accidents, counsel for County objected and demanded an offer of proof, whereupon the proceedings were adjourned to chambers. At that time counsel for County argued that before any evidence of prior accidents can go before the jury there must be a prior showing that the accidents occurred under similar circumstances. Counsel for plaintiffs then argued that there were at least twelve accidents involved, the implication being that it would be burdensome to require a prior showing as to each accident, and the trial court then overruled County’s objection but stated that “if you want to go into this on cross-examination on the other accidents having nothing to do with it, you may.” As stated, counsel for County did go into the matter on cross-examination and established that there was no evidence of similarity between the prior accidents and the

the Government Code for a dangerous condition of public property. Although County does not question the correctness of the instructions given (except on limited grounds discussed infra), it states that the court erred in not instructing the jury specifically that the negligence instructions applied only to Valley and Wallis and that County could be held liable only under the theory of the Tort Claims Act. County points out that the error was compounded because the court gave a concurrent negligence instruction as to the liabilities of joint tortfeasors without giving an instruction that County is not liable for negligence, and that the court further emphasized its error by stating that the issues were “Were the defendants or either of them negligent?” (Italics added.) County relies on those cases that hold it error to give an instruction on negligence in a ease under the (former) Public Liability Act. (Pittam v. City of Riverside, 128 Cal.App. 57 , 67-68 [ 16 P.2d 768 ]; Wilkerson v. City of El Monte, supra, 17 Cal.App.2d 615 , 624; Owen v. City of Los Angeles, 82 Cal.App.2d 933 , 942 [ 187 P.2d 860 ] ; Behr v. County of Santa Cruz, 172 Cal.App.2d 697 , 712 [ 342 P.2d 987 ].)

Plaintiffs respond that the court did in essence inform the jury that the negligence instructions applied only to Valley and Wallis and that the Government Code instructions applied to County. Plaintiffs point to portions of the charge wherein the court told the jury (1) that it would instruct, first on negligence, then on “the special laws relating to the liability of a public entity”; (2) that the plaintiffs had the burden of proving, one, that the defendants Wallis and Valley were negligent, and two, that the conditions at the intersection of Midway and Bulklejr Roads were dangerous; and (3) that “The instructions given govern the case as to each defendant insofar as they are applicable to him, to the same effect as if he were the only defendant in the action, and regardless of whether reference is made to defendant or defendants in the singular or plural form.” We agree with County, however, that the court nowhere gave the jury guidelines for determining which instructions applied to which defendant, and nowhere made plain that the liability of County could only be statutory and could not rest on a theory of common law negligence. (§ 815 and comment thereto.)

The eases cited by County are not directly in point since in those cases there were no eodefendants and it was therefore error to give any instructions on common law negligence, whereas here the presence in the case of the codefendants

Valley and Wallis made it necessary to give instructions on negligence. The cases do make plain, however, that a verdict against a county must be overturned if it is erroneously based on a negligence theory. Thus, it would appear that County’s argument in this case reduces itself to the proposition that the court should have given an instruction stating the substance of section 815, to wit, that a public entity is not liable for an injury except as provided by statute. We agree that such an instruction would have been proper in this case and would have insured that the jury did not become confused by the injection into the case of the issue of negligence on the part of Valley and Wallis.

County did not, however, request such an instruction. Although erroneous instructions may always be challenged on appeal (Code Civ. Proc., § 647; Beck v. Kessler, 235 Cal.App.2d 331 , 334 [ 45 Cal.Rptr. 237 ] ; Rivera v. Parma, 54 Cal.2d 313 , 316 [ 5 Cal.Rptr. 665 , 353 P.2d 273 ]), a party may not argue on appeal that the court failed to give a specific instruction when that party did not request such instruction (Barrera v. De La Torre, 48 Cal.2d 166 , 170 [ 308 P.2d 724 ] ; see also Mula v. Meyer, 132 Cal.App.2d 279 , 286 [ 282 P.2d 107 ] ; Gaspar v. Georgia Pac. Corp., 248 Cal.App.2d 248 , 251 [ 56 Cal.Rptr. 243 ].) Accordingly, we think County is precluded from arguing on this appeal that the court should have instructed in the terms of section 815.

In any case, we doubt that the omission of the desired instruction was prejudicial in this case. We pointed out in Behr v. County of Santa Cruz, supra, 172 Cal.App.2d 697 , 712, that the reason that it is improper to instruct on negligence as such in a Public Liability Act case is that the jury might be led into predicating liability on an agent’s negligence, without more. (Accord: Owen v. City of Los Angeles, supra, 82 Cal.App.2d 933 , 942, where the court also states that prejudice might flow in some cases from a broadening of the entity’s liability beyond the bounds of the statute.) Here there is no evidence that any agent or employee of County was responsible for the accident, and therefore, in view of the fact that the jury was fully instructed on the statutory basis of County’s liability under section 835, we do not think that the jury was misled into predicating County’s liability on some other theory. There simply is no evidence in the record of “common law negligence” of County on which the jury might erroneously have based its verdict. (See Owen v. City of Los Angeles, supra.) Accordingly, we conclude that the

County’s statutory liability for a dangerous condition of public property and does not involve any questions of the negligence of Wallis. As to decedent, there was no evidence to rehut the presumption that he was exercising due care at the time of the accident. (Former Code Civ. Proc., § 1963, subd. (4), applicable to the instant trial; Tannyhill v. Pacific Motor Transport Co., 227 Cal.App.2d 512 , 517 [ 38 Cal.Rptr. 774 ].) The jury may well have been confused as to whether Wallis was or was not negligent in view of the confusing and erroneous instructions with respect to speed, but we do not see how this confusion could have prejudiced County’s case, inasmuch as even if Wallis was negligent and his negligence contributed to the accident, County would nevertheless be liable under section 835 if the dangerous condition of the intersection occurred in producing the injury or contributed to it. (Gardner v. City of San Jose, 248 Cal.App.2d 798 , 805-806 [ 57 Cal.Rptr. 176 ].) The jury was properly instructed under section 835 that the dangerous condition had to be a cause of the accident in order for plaintiffs to recover against County.

Was it Error to Deny County’s Motion for a New Trial?

No. The denial of a motion for new trial rests in the discretion of the trial court. (See Page v. Principe, 220 Cal.App.2d 151 , 157 [ 33 Cal.Rptr. 836 ] ; Holland v. Kerr, 116 Cal.App.2d 31 , 38 [ 253 P.2d 88 ].) We have already determined, supra, that such errors in the instructions as did occur were not prejudicial to County.

Was it Error to Deny County’s Motion for a Judgment Notwithstanding the Verdict?

No. County contends that the court should have granted a judgment notwithstanding the verdict in County's favor because the evidence shows as a matter of law that it could not be liable in this action, first, because the uncontradicted evidence shows that both Wallis and decedent were familiar with the intersection and hence there could be no duty to warn them of its nature, and second, because the evidence in this case shows that it could not be liable on any basis other than the failure to provide regulatory or warning signs or, alternatively, on the basis of the design of the intersection, which design, according to County, was formerly approved, and that a public entity is immune from liability for failure to provide regulatory traffic control signals or signs (§830.4), for failure to provide warning signals or signs

Since there is evidence from which the jury might have determined that the intersection was dangerous to persons using due care and that said dangerous condition was a cause of the instant accident, the motion for judgment notwithstanding the verdict was properly denied. (See, e.g., Tremeroli v. Austin Trailer Equip. Co., 102 Cal.App.2d 464 , 477 [ 227 P.2d 923 ].)

Appeal of Valley and Wallis

Is There a Final Judgment in Favor of WalUs that Precludes Granting a New Trial as to Valley ?

Yes. The rule has been established that where the liability of an employer in tort rests solely on the doctrine of respondeat superior, a judgment on the merits in favor of the employee is a bar to an action against the employer (Freeman v. Churchill, 30 Cal.2d 453 , 461 [ 183 P.2d 4 ]), and therefore where the judgment goes in favor of both the employer and the employee, the trial court may not grant a new trial solely as to the employer. (Cox v. Certified Grocers of Cal. Ltd., 224 Cal.App.2d 26 , 31 [ 36 Cal.Rptr. 48 ]; see also Spruce v. Wellman, 98 Cal.App.2d 158 , 162 [ 219 P.2d 472 ].) Here, the negligence of Valley must, under the doctrine of respondeat superior, be predicated upon the negligent acts of Wallis. Accordingly, if there is a final judgment in favor of Wallis, it precludes the granting of a new trial as to Valley.

After judgment was entered in favor of Wallis and Valley, plaintiffs moved for a new trial against both Valley and Wallis. The order granting a new trial, however, names only Valley. In Cox, supra, there was no valid notice of motion for a new trial filed as to the employee. It was there held that the trial court had no jurisdiction to grant a new trial as to the employer alone. Here, although there was a valid notice of motion filed against the employee, Wallis, a new trial was granted only as to Valley. Upon the rationale of Cox, that since a new trial could not be granted as to the employee it was finally and conclusively determined that he was not liable to the plaintiff and therefore his employer could not be liable under respondeat superior, we hold that the judgment against Wallis has become final because a new trial was not granted as to him. Accordingly, under the rule of Freeman, supra, said judgment bars a further action against Valley.

Is the Order Granting a New Trial Legally Sufficients

No. The order granting a new trial must be reversed for the additional reason that it is legally insufficient. It does not specify unambiguously the ground on which it is based. (See Code Civ. Proc., § 657; Mercer v. Perez, 68 Cal.2d 104 , 109-111 [ 65 Cal.Rptr. 315 , 436 P.2d 315 ].) In the memorandum attached to the order granting the motion for new trial the trial court states essentially that a new trial was granted because the evidence shows that Wallis was negligent and decedent was not negligent. Assuming that we were disposed to hold that said language pinpoints the ground of the new trial as being insufficiency of the evidence, the order would still fail in its statement of reasons in that it does not attempt or purport to recite the respects in which the evidence is legally inadequate, as is required by Code of Civil Procedure section 657. (Mercer v. Perez, supra, at p. 116.) Accordingly, the order cannot be sustained on the ground of insufficiency of the evidence. We must, however, search the record to see if the order may be sustained on any other ground specified in plaintiffs’ motion for a new trial. (Mercer v. Perez, supra, at p. 119; Tagney v. Hoy, 260 Cal.App.2d 372 , 374-375 [ 67 Cal.Rptr. 261 ].)

The motion for a new trial is based on three grounds: insufficiency of the evidence, the verdict is against the law, and errors in law occurring at trial and excepted to by plaintiffs.

A verdict is against the law when there is a failure to find on a material issue, or the findings are irreconcilable,

or the evidence is insufficient in law so that a directed verdict would have been proper for plaintiffs. (Tagney v. Hoy, supra, 260 Cal.App.2d 372 , 376.) Here none of these grounds are applicable except the directed verdict test. In this case plaintiffs were not entitled to a directed verdict, since the evidence conflicts as to whether Wallis or decedent entered the intersection first and as to whether Wallis was negligent in view of his speed and the limited visibility conditions at the intersection. Although it is true that Wallis was exceeding the prima facie speed limit, this fact, as already pointed out, does not establish that he was negligent as a matter of law. The order thus may not be sustained on the ground that the verdict is against the law.

As to errors of law, we have indicated certain errors in the instructions but find no indication that plaintiffs excepted to said errors. On the contrary, in contesting County’s appeal plaintiffs argue that the instructions were proper. Accordingly, the order granting a new trial cannot be sustained on this ground either.

Is Wallis a Party to the Instant Appeals

Yes. Valley and Wallis argue that Wallis is a party to the instant appeal even though not named in the order granting a new trial because according to Cox, supra, Wallis as the employee is interested in any judgment that may be recovered against his employer because the employer may recoup his losses against the employee for damages for negligence occurring within the scope of employment. (Cox v. Certified Grocers of Cal. Ltd., supra, 224 Cal.App.2d 26 , 31.) We agree that Cox establishes that Wallis is sufficiently aggrieved by the order granting a new trial as to Valley to appeal from it under the basic rule that a party is aggrieved if he has an interest in the subject matter of the judgment. (See Estate of Colton, 164 Cal. 1 , 5 [ 127 P. 643 ].)

The question remains, however, whether Wallis is a party to the action, in view of the provisions in Code of Civil Procedure section 938 that any party aggrieved by a judgment may appeal therefrom. What cases exist on this subject simply state that one must be a party to the action or a party to the record in order to appeal. (People v. Arthur Murray, Inc., 238 Cal.App.2d 333 , 338 [ 47 Cal.Rptr. 700 ] ; Estate of Armstrong, 241 Cal.App.2d 1 , 6 [ 50 Cal.Rptr. 339 ].) We think that since Wallis was a party to the original action, the mere fact that he was not named in the order granting a new trial does not

preclude his appealing therefrom inasmuch, as stated, he is definitely aggrieved thereby.

Conclusion

In view of the foregoing we conclude that the judgment in favor of plaintiffs and against County should be affirmed, and that the order granting the new trial as to Valley must be reversed.

The order denying the motion of defendant County of Solano for a judgment notwithstanding the verdict is affirmed. The judgment against defendant County of Solano is affirmed. The order granting a new trial as to defendant Valley Livestock Co. is reversed. Plaintiffs shall recover their costs on appeal from defendant County of Solano. Defendants Vernon L. Wallis and Valley Livestock Co. shall recover their costs on appeal from plaintiffs.

Sims, J., and Elkington, J., concurred.

The petition of the appellant County for a hearing by the Supreme Court was denied October 23,1968.