Bender v. Perry

This is an appeal from a judgment based upon the verdict of a jury in favor of plaintiff" and respondent in an action for damages for personal injuries, property damage and loss of earnings arising out of an intersection collision which occurred on January 2, 1938, in Kern County.

At the time of the collision defendant Perry was driving a ton and a half Ford truck owned by defendant Cowart, in the course of his employment, east on Panama Lane. The plaintiff was driving his Ford sedan south on Oak Street, sometimes called "Wible Road. Oak Street has pavement 25 feet wide and Panama Lane has pavement 18 feet wide. The collision of these two vehicles occurred in the intersection of the paved portions of the highways. Plaintiff testified that he was driving about 48 miles per hour as he approached the intersection. The evidence showed that defendant Perry was driving between 30 and 35 miles per hour up to a point about 200 feet from the intersection when he slowed down. Perry and his passenger, Polf, both testified that Perry stopped the truck at the boulevard stop sign near the southwest corner of the intersection. Plaintiff testified that when he first noticed defendants’ truck it was about 150 feet west of the intersection, traveling about 30 miles per hour, and that it slowed to about 10 miles per hour; that it appeared as if defendant were going to stop, but, instead of stopping the truck, ‘1 came shooting out into the road, into the center of the road” when plaintiff was “right at the intersection” and within 50 feet of it. A witness who was working in a field at the southwest corner of the intersection testified that he saw the truck and it did not stop for the stop sign. Defendant Perry testified that he did not see plaintiff’s ear until he was in the center of the intersection, and then his passenger said “Look out”, but then he did not have time to do anything to avoid the collision. The corner was not-an obstructed intersection. It is open on three sides, including the side involved in this case. Defendant Perry testified that from a point 200 feet back from the intersection

Appellants present two main assignments of error. In the first, appellants contend that the court erred in not giving an instruction offered by defendants in regard to the right of way as provided by section 550, subdivisions (a) and (b), of the Vehicle Code, which relate to intersections other than on through highways; and also that the court should not have given the instruction offered by plaintiff defining a “through highway”. They urge in the second assignment of error that the verdict was contrary to the evidence and that contributory negligence appears as a matter of law.

Plaintiff’s opening statement at the trial indicated that his charge of negligence against defendants was based in part upon the claim that Oak Street was a “through highway” at its intersection with Panama Lane and that, consequently, defendant Perry was required to stop his truck at a stop sign near the entrance to the intersection. Defendants offered to the court two instructions on the subject of right of way, one based on section 552 of the Vehicle Code defining the rules relating to the right of way at through highway intersections, and the other based on section 550 of the Vehicle Code setting forth the rules on the right of way applicable to ordinary or nonthrough highway intersections. All references to the Vehicle Code herein relate to the Vehicle Code, which was in effect at the time of the accident. The defendants’ instruction relating to the right of way at through intersections was given by the court, and the other was refused. No proof was offered at the trial to show whether or not the board of supervisors of Kern County declared Oak Street to be a through highway or authorized the erection of boulevard stop signs at the intersection as provided in section 471, subdivision (b), of the Vehicle Code, but the uncontradicted evidence is to the effect that such signs were there at the time of the collision. Appellants contend, therefore, that, under the state of the evidence, the trial court should have deleted the instruction dealing with the subject of right of way at through highway intersections, there being no evidence upon which the existence of a through highway could be found. The record discloses that throughout the trial it was the theory of plain

Counsel for defendants made an opening statement immediately following plaintiff’s opening statement, in which defendants’ counsel said in part: “ . . . now, on the day in question Mr. Perry drove this truck as I have described it up to this intersection, stopped here at the boulevard stop sign, looked in both directions, first looking north, then looking south. As he looked north he looked up the road a distance of some 900 feet or so, about 300 yards, that in that distance there were no automobiles of any kind approaching the road, the intersection. . . . Now, with respect to Mr. Bender’s car we will prove that he was driving down Oak street at a speed in excess of 65 miles per hour, he was coming down that road like a cannon ball, that he was not within Mr. Perry’s line of vision at the time he looked across the road, but he came so fast that he reached the intersection, struck him anyhow before Mr. Perry could get across the road ...” A diagram was used to illustrate testimony. It showed the stop signs. In objecting to a question, one of defendants’ counsel said: “There is one further objection, there is no proper foundation laid here for asking this question because of the fact it hasn’t been shown exactly how many feet from the boulevard stop sign that this car, this truck of the defendant did stop. In other words, the question has been asked if I recall the exact terminology ‘if a car was stopped at the boulevard stop sign’. There is a great deal of discretion as far as a motorist goes, stopping at a boulevard stop sign, you don’t have to stop the front wheel where the sign post is, don’t have to stop exactly with the hind wheels where the sign post is. In other words, you come up to that sign post, you might stop ten feet before the stop, the boulevard stop, it would still be within the law, because coming to a stop within a reasonable distance of that

“It is suggested that inasmuch as there was not introduced in evidence any official authorization by the board of

supervisors of San Bernardino County to anyone to erect the stop sign at the intersection in question, that the stop sign was without legal significance and the defendant was under no duty to stop at such stop sign. The only testimony in the record with reference to the erection of the stop sign was the testimony of a witness in answer to the question, ‘ There is one of those stop signs there at that intersection?’, ‘Yes, put up by the Automobile Club. ’ Apparently no question was raised in the trial court as to whether or not the stop sign was properly at the intersection and neither respondent nor appellant attempted to prove or disprove that an authorization had been given to the Automobile Club by the board of supervisors to erect stop signs along Foothill Boulevard. In the absence of any question as to the validity of the stop sign at the trial by the appellant, or any controversy as to whether it was properly at the intersection, we do not think it was incumbent upon the respondent to offer in evidence the official authorization for the erection of the sign, and her failure to do so under such circumstances would not justify us in reversing a verdict in her favor. ’ ’

In Abbott v. Cavalli, 114 Cal. App. 379 , 382, 383 [ 300 Pac. 67 ], plaintiff tried the case on the theory that section 141¾ of the California Vehicle Act, adopted in 1929 (Stats. 1929, p. 1580), was retroactive and that she, as a guest in an automobile, was required to prove gross negligence on the part of her host in order to recover damages, although the accident occurred prior to the date the amendment became effective. Later the Supreme Court decided, in Callet v. Alioto, 210 Cal. 65 , 70 [ 290 Pac. 438 ], that said section was not retroactive. Plaintiff then appealed, contending on appeal that, since the action was tried and determined on an erroneous theory, the judgment should be reversed. The appellate court affirmed the judgment, stating: ‘ ‘ There would be much force in plaintiff’s contention were it not for the fact that she invited the error of which she now complains”. After defendants offered the instruction in question and requested the court to give it, if for any reason defendants did not want the court to read it to the jury, they should have withdrawn it, or otherwise made it known to the court that they did not desire to have it given. A party has no right to complain of instructions given at his own request, or of instructions given which were not offered by him, but which

Appellants take exception to an instruction offered by plaintiff and given by the court which defined a through highway in the language of section 82.5 of the Vehicle Code, as follows: “The court instructs the jury that a through highway is a highway at the entrance to which vehicular traffic from intersecting highways is required by law to stop before entering or crossing the same when stop signs are erected as provided by law. ’ ’ Appellants maintain that said section 82.5 is general and that section 471 of the Vehicle Code is specific as to the requirements necessary to create a through highway; that they deal with the same subject matter and, therefore, are in pari materia and must be construed together as one; and that the definition of a through highway which was given by the court ignored the specific requirements of said section 471 which qualifies the general provisions of section 82.5. This, say appellants, might have confused the jury and it also permitted them to find that Oak Street was a through highway when the evidence failed to show that it was legally so designated or that the erection of the stop signs was legally authorized, and thus the jury was allowed to change the rule of right of way applicable to the intersection in question. The most direct answer to this contention is that, as stated above, the case was tried on the theory that Oak Street was a through highway and it was not necessary for the jury to determine whether Or not such was the fact.

This brings us to the last of the appellants’ main contentions—that contributory negligence on the part of plaintiff

The judgment is affirmed.

Barnard, P. J., and Marks, J., concurred.