Cedzo v. Bergen

This ease arises out of a collision of automobiles at an intersection of highways, the configuration of

On July 9,1939, at approximately 2:25 a. m., plaintiff was a guest in a Ford coach which was being driven in a westerly

The verdict of the jury was for defendants and plaintiff

(2) that the trial court erred to the prejudice of plaintiff in instructing the jury, of its own motion, and contrary to an instruction requested by both plaintiff and defendants, that contributory negligence of plaintiff was an issue in the case;

(3) that the trial court erred prejudicially to plaintiff in giving on its own motion an instruction based on a section of the Vehicle Code as amended subsequent to the accident. None of these contentions can be sustained.

On plaintiff’s first point we are not disposed to hold that the implied finding of the jury that defendant driver was not guilty of negligence proximately contributing to the accident is as a matter of law untenable. The evidence in this regard is more thoroughly discussed later on in this opinion. Certainly, however, we must recognize that the evidence would amply support a contrary verdict. This latter fact makes it necessary for us to give careful consideration to the two asserted errors in law occurring at the trial.

Defendant pleaded contributory negligence as a defense, in the following language: “That plaintiff was guilty of negligence which proximately contributed to and caused the happening of the accident in question, in this: That at said time and place he was riding in an automobile which he knew was being driven, or as a reasonable and prudent person should have known was being driven, in a careless, reckless, negligent and unlawful manner. ’ ’

At the trial no evidence was elicited which could support a finding that plaintiff was guilty of negligence which proximately contributed to his injuries. There is no evidence of any lack of ordinary care by the driver of the Ford prior to the time that the boulevard stop was made on approaching the Redondo Boulevard intersection and the events thereafter disclose no negligent act or omission on the part of plaintiff. Neither defendant driver nor his witnesses claimed to have seen the Ford until it was approximately at the railway tracks —about 80 feet beyond (west of) the point where it was re

Plaintiff urges that the case was tried by both parties on the theory that contributory negligence of the plaintiff was not in issue and points out that both plaintiff and defendants requested the court to instruct the jury as to the issues to be determined, as follows: “Issues to be Determined. The issues to be determined by you in this case are these:

“First: Was the defendant negligent?

“If you answer the question in the negative, you will return a verdict for the defendant. If you answer it in the affirmative, you have a second issue to determine, namely: “Was that negligence the proximate cause of any injury to the plaintiff?

“If you answer that question in the negative, plaintiff is not entitled to recover, but if you answer it in the affirmative, you then will find what damage plaintiff has suffered and return a verdict in his favor for the amount thereof.

“As indicated in this instruction, you should first determine the question of liability.

“Requested by Plaintiff. Requested by Defendant.” The above quoted requested instruction, however, was refused and the court of its own motion gave an instruction reading as follows: “By the Court No. 1. The issues to be determined by you in this ease are these:

“If you answer that question in the negative, you will return a verdict for the defendant. If you answer it in the affirmative, you have a second issue to determine, namely: “Was that negligence a proximate cause of any injury to the plaintiff?

“If you answer that question in the negative, plaintiff is not entitled to recover, but if you answer it in the affirmative, you then must find on a third question:

“Was the plaintiff negligent?

“If you find that he was not, after having found in plaintiff’s favor on the other two issues, you then must fix the

amount of plaintiff’s damages and return a verdict in his favor.

“If you find that plaintiff was negligent, you then must determine a fourth issue, namely:

“Did that negligence contribute in any degree as a proximate cause of the accident?

“If you find that it did, your verdict must be for the defendant, but if you find that it did not, and you previously have found that there was negligence on defendant’s part which proximately caused plaintiff injury, you then must fix the amount of plaintiff’s damages and return a verdict in his favor.

“As indicated in this instruction, you should first determine the question of liability.” It will be noted that by this instruction the jurors were told that plaintiff’s negligence was an issue to be determined by them and that if they found that plaintiff was negligent and that his negligence contributed in any degree as a proximate cause of the accident “your verdict must be for the defendant.” Appellant further urges that the impropriety of the above quoted instruction was aggravated by the court through its giving, likewise of its own motion, an instruction defining contributory negligence as follows: “Contributory Negligence—Definition. Contributory negligence is negligence on the part of a person injured which, cooperating in some degree with the negligence of another, helps in proximately causing the injury of which the former complains.

‘1 One who is guilty of contributory negligence may not recover from another for the injury suffered. (The reason for this rule of law is not that the fault of one justifies the fault of another, but simply that there can be no apportionment of blame and damages among the participating agents of causation.” (Italics added.) It is argued, in effect, that the definition quoted coupled with the fact that there was no evidence which justified submitting the issue to the jurors, would reasonably tend to confuse them.

If the matter stood just as above delineated the error would be apparent, but in fairness to the trial court it must also be noted that the issue as to plaintiff’s contributory negligence was raised by the pleading, that the plaintiff did not request an instruction that the evidence was insufficient to support a verdict against the plaintiff on the issues so raised, and on the contrary plaintiff did request the following instruction

Plaintiff’s third point presents a more serious problem but one which upon analysis appears not to be prejudicial. At the time the accident occurred, July 9, 1939, section 577 of the Vehicle Code provided that “The driver of any vehicle upon approaching any entrance of a highway or intersection signposted with a stop-sign as provided in this code shall stop at

“You are further instructed that if Mr. Bergen was exercising ordinary care he had a right to further assume that any driver about to cross Redondo Boulevard which had brought his car to a stop as is required at the entrance to a through highway, would yield the right of way to him or any other cars traveling on Redondo Boulevard which were approaching so closely thereto as to constitute an immediate hazard.” In this connection plaintiff contends that “The natural effect of the erroneous instruction complained of [section 577 as amended in 1939] together with the last quoted instruction, would be to inform the jury that the Ford automobile in which appellant was riding should have come to a stop before it entered Redondo Boulevard at the line drawn on the Plaintiff’s Exhibit No. 1, [a map of the locale] indicating the prolongation of the southerly curb line of Redondo Boulevard which said prolongation was placed thereon by respondents ’ attorney. ’ ’ Plaintiff also calls attention to the fact that the jury were instructed that a violation of section 577 of the

We do not find such contention reasonable. Examination of Plaintiff’s Exhibit No. 1 discloses that it portrays the position of the stop sign, the white line painted on the roadway, and other topographical features, as well as a dotted line indicative of the prolongation of the southerly curb of Redondo Boulevard. There is no justification for inferring that such dotted line on the diagram could have been’ construed by the jury as indicating a “limit line’’ marked on the roadway. It appears to us that the jury most probably would have construed the words “limit line” as used in section 577 as denoting the white line painted on the roadway and depicted on Plaintiff’s Exhibit No. 1. It is true that there was a conflict in the testimony of plaintiff and the driver Roberts as to whether the Ford stopped at the stop sign or at the stop line. But it was plaintiff himself who testified that the stop was made at the white line. If the jury believed plaintiff’s testimony in that respect they must have concluded that the law as erroneously stated in the instruction being discussed was complied with by Roberts. If they believed Roberts’ testimony that the stop was made at the stop sign and concluded that the law was violated by him in not stopping at the white line, they still could not, under the instructions given, have imputed Roberts’ negligence to plaintiff. In either event the stop would have been made before the defendant Bergen saw the Ford and the question as to whether Bergen was or was not negligent in failing to see the Ford sooner or, after seeing it, in failing to take some action sooner to avoid the collision, would have been substantially the same. The very fact that the stop sign and the stop line were placed at such a considerable distance back from the curb line (extended) of Redondo Boulevard obviously placed on the driver of the car in which plaintiff was riding the responsibility of recognizing that a ear approaching from the west on Redondo Boulevard, even though a considerable distance away from the actual intersection, might constitute an immediate hazard to a car

As to the right of way rule the jury were correctly instructed that1 ‘ The driver of any vehicle which has stopped as required by this code at the entrance to a through highway shall yield the right of way to other vehicles which have entered the intersection from the through highway or which are approaching so closely on the through highway as to constitute an immediate hazard, but said driver having so yielded may proceed and the drivers of all other vehicles approaching the intersection on the through highway shall yield the right of way to the vehicle so about to enter or cross the through highway.” The phrase “at the entrance to a through highway” cannot be narrowly construed to mean precisely at the extended curb line. In many instances it would be impracticable, if not impossible, to erect stop signs exactly “at the entrance” to the highway if such a narrow construction were placed on those words. Section 82.5 of the Vehicle Code defines “through highway” as “a highway or portion thereof at the entrance to which vehicular traffic from intersecting highways is required by law to stop before entering or crossing the same, and when stop signs are erected as provided in this code.” (Italics added.) In the case before us it is obvious that in the liberal view both the stop sign and the stop line must" be regarded as being “at the entrance” to the through highway even though they are a substantial distance from the extended curb line bounding the limit of the intersection.

It is apparent that the jury, in the light of all the circumstances depicted in evidence, must have concluded that defendants ’ car constituted an immediate hazard to the one in which plaintiff was riding at the time the latter made its stop, if it did stop, and that defendant Bergen was not negligent either in failing to see Roberts’ car sooner or in failing to stop or turn sooner than he did. It is to be recognized that according to defendant Bergen’s evidence the Ford car was approximately at the railway tracks when he first saw it, that the cars were then about 200 feet apart, that the Ford car was traveling at 40 miles per hour and defendants’ car at about 30 miles per hour. The ears were therefore approaching each other at a combined speed of about 70 miles per hour (102.66 feet per second) which means that only two seconds would have been consumed in reaching the point of impact if neither

The jury apparently believed that it was the duty of the Ford driver to yield the right of way and that defendant driver had a right to, and did, in the exercise of ordinary care, assume that he would do so. The result of failure to yield such right of way would be the same whether the failure be regarded as coming from not stopping or from not slowing down. In view of the fact that defendants’ approaching car did constitute an immediate hazard to the Ford driver and that the latter did not yield the right of way, we cannot say that it is probable (Cal. Const., art. YI, § 4%) that a different conclusion as to defendants’ negligence would have been reached without the reading of section 577 as amended in 1939 and other instructions on the same subject.

From the foregoing discussion we believe it adequately appears (1) that the evidence is sufficient to support the jury’s verdict, (2) that the act of the court in instructing the jury that contributory negligence was an issue in the case was invited by the plaintiff .and hence cannot be availed of by him as prejudicial error, and (3) that the error in instructing the

The judgment is affirmed.

Shinn, J., and Wood (Parker), J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied September 24, 1942.