Harding v. Purtle

Before the trial court when the motion was granted were the depositions of Mrs. Harding and Purtle.^[1]

The accident happened on Arcade Boulevard in the north area of Sacramento, near the intersection of that street and Kenwood Avenue. It occurred during the noon hour of Wednesday, May 4, 1966. Mrs. Harding, a young housewife, was driving and with her in her ear were her three daughters, the eldest of whom was eight and a half, and a neighbor, Joyce Doucette. At the point where the accident happened Arca.de Boulevard is a two-lane street. Apparently a number of automobiles were traveling ahead of the Harding vehicle. Traffic was moving slowly—between 15 and 20 miles per hour. That was also Mrs. Harding’s speed just before and for some distance back from the point where she ultimately - stopped under circumstances to be described. As she drove she frequently checked by means of her rear view mirror, but noted neither the Purtle automobile behind her nor the Mac Dougal vehicle—which, with its admittedly defective brakes, set in action the chain of events ending in the ultimate accident.

As Mrs. Harding approached the point where Kenwood Avenue emerges into Arcade Boulevard, the ear ahead of her slowed to a stop to allow other cars through. At the slow speed Mrs. Harding was traveling no emergency stop was required. Little, if any, pressure on the brakes was necessary. She stopped—it could be inferred—almost a ear length behind the automobile which had stopped ahead of her.

It was then she first noticed the Purtle car. She observed to her friend Joyce: “I hate a car that gets up on me,” and then “Boy, that guy’s going to run over me.” It would be inferable from Mrs. Harding’s testimony that only inches separated the front of Purtle’s ear from the rear end of hers when Purtle finally reached a stop. (Mac Dougal’s deposition puts the distance at a foot or two.) It did reach a stop and several seconds elapsed before the ensuing crash. There is nothing in the record as to Purtle’s speed.

Particular danger signals are indicated in what we may conveniently refer to as “demeanor” cases. (They have sometimes been called “credibility” cases; see, Bauman, California Summary Judgment ; A Search For a Standard, 10 U.C.L.A. L. Rev. 347, 351 et seq.) These refer to cases in which the existence or nonexistence of a determinative fact depends upon the credibility to be given to testimonial evidence. Reference to the importance of “cross-examination” at a trial and the “demeanor of witnesses in giving their testimony” was made in a leading case where a summary judgment against a defendant was reversed by our Supreme Court under the concept of strict construction against the moving party, liberal construction in favor of his opponent. (Eagle Oil & Refining Co. v. Prentice, supra, 19 Cal.2d 553 , 556.) A legal scholar, Professor John A. Bauman, whose research in the field of summary judgments has been extensive has decried the use of the strict-versus-liberal construction as an inadequate guide to trial courts. He states: “there are many cases, particularly those involving torts, where knowledge of the occurrence is fortuitous and not shared, and where the absence of controverting proof could not reasonably be the basis for an inference that the plaintiff’s version of the occurrence is the true one. To avoid a summary disposition in such eases, the courts strictly construe the supporting affidavits and find them insufficient to substantiate a judgment. Incorrect decisions are thus avoided, but the opinions themselves become amere matter of logomachy.” (Op. cit., 10 U.C.L.A. L. Rev. 356.)

Of course, in most, if not all, summary judgment eases there will be some testimonial evidence. To some extent, therefore, the credibility of witnesses is always a factor. But in most of the eases where a summary judgment has been granted credibility has not been a decisive factor.^[2]

Professor Bauman’s article mentioned has been cited in several California appellate court decisions. It was the subject of at least qualified approval in Frye v. Felder (1966) 246 Cal.App.2d 136 , 139 [ 54 Cal.Rptr. 627 ] (hear. den.). Frye

Professor Bauman concludes his article (op. cit., p. 367) with the following observation: “. . .In determining whether a trial is necessary, the evidence presented in support of the motion must be judged not only as to its sufficiency to substantiate a claim of defense, but also as to its credibility. Unless creditibility issues inherent in that proof can be avoided by the burden-of-proof rule^[3] or be resolved as a matter of law, a summary disposition is improper and a trial must be held. Standards formulated with these factors in mind will provide trial judges with practical guidance in disposing of motions for summary judgment. The result will be an improvement of decision making at the trial level with a

Kramer v. Barnes, supra, 212 Cal.App.2d 440 , reversed a summary judgment in favor of a middle-car defendant in a multiple car rear end accident case. We find its facts indistinguishable from the action now before this court.^[4] There is thoroughness in the restatement in Kramer of all the tests and rules applicable to summary judgments. We adopt them principally by reference (see pp. 444-449). We quote sparingly. The court says (on p. 448) : “ [W]hether in any particular case the operator of the rear vehicle is negligent if he drives his machine so as to cause a collision with the one ahead depends upon all the circumstances surrounding the happening of the accident, and almost invariably presents a question of fact for the decision of the jury. ...” Also because Purtle argues that the doctrine of res ipsa loquitur is applicable where a stationary plaintiff’s automobile is rear ended by a defendant’s vehicle and cites two-car cases in support of the theory that Purtle is entitled to the benefit of that rule (e.g., Alarid v. Vanier (1958) 50 Cal.2d 617 [ 327 P.2d 897 ]), we note the following in Kramer to indicate how that argument can boomerang in a multi-ear accident (on p. 448) : “It has also been held that a collision in which a following motorist collides with the rear end of a vehicle ahead is some evidence of negligence on the part of the following motorist. [Citations.] ”

There are triable issues present in the case before us. Triable issues should be tried.

Judgment is reversed.

Friedman, J., and Janes, J., concurred.