Brannock v. Bromley

This is an action brought by Nellie Brannock and her husband, Weldon Brannoek, arising out of an automobile accident in which the wife, a pedestrian, was admittedly struck by an automobile driven by defendant, Tirzah Bromley, and belonging to defendant Bromley. The jury brought in a verdict somewhat unusual in form, which reads as follows:

“We, the jury in the above entitled cause, find for the defendants, William Bromley and Tirzah Bromley, and

against the plaintiffs, Nellie Bromley and Weldon Bromley, her husband.

“We, the jury, find that both the plaintiffs and defendants were guilty of negligence.’’

This accident occurred at 7 P. M. on the state highway in the unincorporated town of Yountville, on August 11,1936. The highway runs northwesterly and northerly through said town. One street crosses the highway immediately north of the 25-mile speed sign. Mrs. Brannock had been visiting a friend who lived on the west side of the highway, and returning home, it was necessary for her to cross the highway at a point opposite said home. She testified that she walked to the edge of the highway, looked both ways, and first saw defendant’s car approaching at a distance of about 150 to 200 yards away. She started to cross the highway in a diagonal direction, and was struck by said automobile, receiving personal injuries for which she now seeks compensation. There was testimony to the effect that defendants first saw Mrs. Brannock just as they passed the 25-mile limit sign, and the point where she was struck is some 450 feet beyond said sign. There was evidence to the effect that there were skid or tire marks 90 feet in length and leading to the point of impact, from which it might be inferred that defendants were exceeding the legal speed limit.

Plaintiffs moved for a new trial upon the ground of newly discovered evidence, and in support of said motion they filed three affidavits, one by Weldon Brannock, one by Maude Henninger, and one by James B. Bailey. A reading of the first two affidavits mentioned above indicates, with one exception, that they are designed merely to impeach testimony of witnesses given at the trial. Such evidence is not of a character which would justify the court in granting a new trial. (20 Cal. Jur., p. 98, see. 63.) The other affidavit by Bailey, however, is in an entirely different category, and what we have to say upon the question of newly discovered evidence will be based entirely .upon the latter affidavit. In his affidavit the witness Bailey states as follows: “That he is a resident of the Town of Yountville; that he knows Mrs. Maude Henninger and her husband, Roy Douglas, and Mr. and Mrs. Brannock and knew them on August 11, 1936; that he was on the Southern Pacific railway tracks south of the Henninger place, between 7:00 and 7:30 P. M., on that date when Mrs.

Brannoek was injured; that he was west of the highway and about 300 feet from the bridge; that he saw the automobile involved in the accident traveling along the highway near the speed-limit sign, traveling at a high rate of speed, not less than forty-five miles per hour; that no horn was blown at the sign, or any other place; that Mrs. Brannoek started across the highway when the automobile was at, or near such sign, when the automobile was at least 300 feet south of her; that Mrs. Brannoek was walking rapidly, but not. running; that the automobile gained on her very rapidly and when about 100 feet south of her, the car slowed down very rapidly, the tires, or brakes making a loud noise; the car swerved almost off the highway to the right, the left side of the car being just on the pavement going towards the large pole at the southeast end of the bridge, swinging again to the left just missing the pole and hitting Mrs. Brannoek when she was near the concrete wall of the bridge; such car running then across the bridge; it appearing to affiant that Mrs. Brannoek was clear across the concrete pavement when the car ran over her.”

When the word “plaintiff” is used in this opinion, reference is made to Nellie Brannoek.

It is contended by appellants that the newly discovered evidence is cumulative, and that, under such evidence, there is no reasonable probability that the result of a retrial would be different. In this connection appellants rely upon the case of Smith v. Hale, 3 Cal. App. (2d) 277 [ 39 Pac. (2d) 445 ], but we find nothing in that case relating to the question of cumulative evidence. “By the Act of 1851, one of the grounds on which a motion for a new trial could be made was, ‘newly discovered evidence, material for the party making the application, which he could not with reasonable diligence have discovered and produced at the trial’. The subdivision of the section has never been amended, and the corresponding provision of the Code of Civil Procedure is in the same language.” The code section mentioned is 657, subdivision 4. An early ease states the rule pertaining to cumulative evidence as follows: “The general rule undoubtedly is that the newly discovered evidence must not be cumulative. If it be of that character it will not ordinarily aid the moving party. That it is cumulative is, how- . ever, an affirmative proposition, and, unless sufficiently ap

It is also contended that the showing of diligence is insufficient. “Diligence is a relative term incapable of exact definition. What would amount to due diligence under one state of facts would fall absolutely short of it under another and different state of facts. It depends, therefore, so essentially upon the particular circumstances of each case, with all their distinct and varying phases and bearings, as they have appeared to the lower court at the trial and throughout the conduct of the cause, in determining whether diligence has been used in any particular instance, that this court should hesitate to disturb a ruling, upon this ground where it has any substance whatever upon which to rest. The presumption is that the discretion has been properly exercised, and that presumption must be overcome by a clear want of facts before the order will be disturbed. . . . The materiality of this evidence, as above suggested, is not denied, but appellant claims that with any sort of diligence defendant could have informed himself of it in time to produce it at the trial. But it does not appear that there was anything to put defendant upon inquiry for any such evidence. The witness, it seems, said nothing about the circumstance, and very likely thought little, if anything, of it; she lived, at the time, it is true, in the same house with defendant, but he was confined to his room, and the next day or so was taken to San

The contention is made by appellants that respondent was, in law, guilty of contributory negligence. It is unnecessary to pass upon that question on this appeal. If the newly discovered evidence would disclose further proof of contributory negligence (and we have so held), the case must be retried upon additional facts bearing upon this issue, and a determination of the point on the record of the first trial would be useless and futile. We might add, however, that we have examined the cases cited by appellant upon this point,—particularly those in their “Supplementary Memorandum”. In each of them the pedestrian is held to have been negligent as a matter of law. We believe, however, that the factual structure of each of them can be readily distinguished from the case before us. In the case of Gaston v. Tsuruda, 5 Cal. App. (2d) 639 [ 43 Pac. (2d) 355 ], the pedestrian watched the approaching automobile and did not yield the right of way by stopping when she could have been safe, but continued forward, and actually walked into the side of the moving truck while its driver was vainly trying to avoid her. In the ease of Gibb v. Cleave, 12 Cal. App. (2d) 468 [ 55 Pac. (2d) 938 ], the court held the pedestrian to have been guilty in law of contributory negligence upon the following ground: “The only analysis of the circumstances is that plaintiff became confused because of his intoxication, and walked directly into the path of danger without taking any precautions for his own safety.” In the case of Francis v. Riddle, 15 Cal. App. (2d) 282 [ 59 Pac. (2d) 532 ], the court held the pedestrian to have been negligent in law because “she did not remember that she looked for approaching cars in the directions from which they would come, but only that she gained the impression she had plenty of time to get across the street. Had she looked, she must have seen defendant’s ear approaching a few feet away, for she had

The duty of a pedestrian to “yield” the right of way while crossing a street other than a regular crosswalk, as imposed by section 562 of the Vehicle Code, may call for a higher degree of care upon the part of such pedestrian than would be applied to one crossing at a regular crosswalk, but the question as to whether or not such care was exercised in a given ease is one for the jury, unless he is so careless that it can be said he is negligent as a matter of law.

The rule applicable to the facts of this case is found in Flach v. Fikes, 204 Cal. 329 [ 267 Pac. 1079 ], where it is said: “It cannot be said that a person is guilty of contributory negligence merely because he attempts to cross a street when an automobile is approaching. If that were so he never could attempt to cross a street upon which automobiles are being operated, and consequently where there is almost always an approaching machine. He has a right to expect that those operating automobiles upon a public street will operate them in the manner and at the speed customary at the particular place. Whether such a person is guilty of contributory negligence in attempting to cross a street in front of an approaching automobile would depend upon all the circumstances under which he acted. . . . He may well have reasoned that defendant was traveling at a lawful rate of speed and therefore he could cross the street before defendant’s automobile would reach the point in the street over which deceased would be required to pass in crossing the same. Had defendant been traveling at a lawful rate of speed, decedent might have crossed the street in safety. Under the circumstances whether he acted negligently or not was for the trial court, and its findings as to his negligence will not be disturbed on appeal.”

We are unable to say that the trial court abused its discretion ; accordingly, the order granting the motion for new trial is affirmed.

Thompson, J., and Pullen, P. J., concurred.

A petition for a rehearing of this cause was denied by the District Court of Appeal on February 24, 1939, and an ap