49 Cal.2d 652, 24631, Butigan v. Yellow Cab Co.

Docket Nº:24631
Citation:49 Cal.2d 652, 320 P.2d 500
Opinion Judge:[9] Gibson
Party Name:Butigan v. Yellow Cab Co.
Attorney:[7] Raoul D. Magana, Victor E. Kaplan and Monta W. Shirley for Appellants. [8] Kenneth J. Murphy, Henry E. Kappler, H. T. Ellerby and Henry F. Walker for Respondents.
Case Date:January 28, 1958
Court:Supreme Court of California

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49 Cal.2d 652

320 P.2d 500

GEORGE BUTIGAN et al., Appellants,


YELLOW CAB COMPANY (a Corporation) et al., Respondents.

L. A. No. 24631.

Supreme Court of California

Jan. 28, 1958

In Bank.

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Raoul D. Magana, Victor E. Kaplan and Monta W. Shirley for Appellants.

Kenneth J. Murphy, Henry E. Kappler, H. T. Ellerby and Henry F. Walker for Respondents



This action was brought for damages for personal injuries suffered by Mrs. Butigan when a taxicab in which she was riding as a passenger and which was owned by defendant Yellow Cab Company and driven by defendant Bland collided with an automobile operated by defendant Wurm. She appeals from a judgment entered on a verdict in favor of all three defendants, contending that the court erred in instructing the jury. [*]

The accident happened in the daytime on Silverlake Boulevard in Los Angeles, in a business district. When the taxicab called by plaintiff arrived at her residence on the boulevard it was headed north. Her destination was in a southerly direction, but the driver first proceeded north. Before reaching the intersection with Effie Street, he turned the cab toward the left over the center line of Silverlake Boulevard. In the west half of the boulevard the cab was hit by the automobile of Wurm, who was driving south on the proper side of the center line, and plaintiff was injured.

Bland testified that he intended to enter a driveway on the west side of Silverlake Boulevard and to back out, turning so as to face south. He did not see any oncoming southbound traffic, and he gave an arm signal 60 to 70 feet before he commenced his turn. When he was on the center line his motor stopped, and his cab remained standing with its front end some 3 feet to the west of the center line. For one and a half to three seconds he unsuccessfully tried to start the motor before his cab was hit by Wurm's car. On the day before the collision the cab had been in the company's garage because Bland had had trouble with the engine stalling, probably because the carburetor had been adjusted too lean in an attempt to save gasoline.

Wurm testified that he was driving south on Silverlake Boulevard at a speed of 25 to 30 miles an hour. He could not see the northbound traffic until he had passed through an

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intersection, when he saw "solid" northbound traffic and in it, 150 to 175 feet away, a Yellow cab moving in the lane near the center line. When the cab was not more than two car lengths distant, it made a sudden turn over the center line in front of his car without giving any signal. He immediately applied his brakes full force but nevertheless hit the right side of the taxi. The cab had not stopped or hesitated before the impact, and it had been driven five feet past the driveway into which Bland said he had intended to turn. After the accident the taxi backed up and turned into the driveway.

The first question is whether the evidence shows as a matter of law that the collision was caused by the negligence of any of the defendants. Plaintiff contends that the manner in which Bland turned violated sections 541 and 544 of the Vehicle Code. Section 541, insofar as applicable, reads: "(a) No vehicle in a business district shall be turned so as to proceed in the opposite direction, except at an intersection." This provision, which prohibits "U" turns, does not prohibit the movements which Bland testified he was attempting to execute. Neither the making of a left turn into a private driveway nor the backing out of a driveway is in itself prohibited, and the section does not specify that the combination of the two, when the driver's real purpose is to proceed in the opposite direction, must be treated as a single, complete turn coming within the prohibition of the statute. Section 544 permits the making of a turn only when it can be made with reasonable safety and after giving an appropriate signal. This provision does not require the driver to know that a turn can be made with safety but only that he must exercise reasonable care, and whether such care has been exercised is normally a question of fact. (Washam v. Peerless Automatic etc. Co., 45 Cal.App.2d 174, 177 ; Spear v. Leuenberger, 44 Cal.App.2d 236, 247-248 .)

In view of the conflicting testimony of the two drivers, the question whether Bland violated section 544 is one of fact. Apart from any violation of statute, the evidence tends to show that Bland and Yellow Cab Company did not exercise the high degree of care required of them, but the evidence is not so compelling that the lack of such care is established as a matter of law. Although it could be inferred that Wurm exceeded the prima facie speed limit of 25 miles per hour in a business district (Veh. Code, section 511, subd. (b)), it was for the jury to determine whether the inference should be drawn

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and whether the speed in excess of 25 miles per hour, if any, amounted to a violation of the basic rule of reasonable and prudent speed (Veh. Code, section 510).

The trial court, at defendants' request, instructed the jury: "In law we recognize what is termed an unavoidable or inevitable accident. These terms do not mean literally that it was not possible for such an accident to be avoided. They simply denote an accident that occurred without having been proximately caused by negligence. Even if such an accident could have been avoided by the exercise of exceptional foresight, skill or caution, still, no one may be held liable for injuries resulting from it. Bear in mind, however, that if any defendant failed to exercise ordinary care, and if that failure was a proximate cause of the accident in question, then, whether or not such conduct was the sole cause, the accident was not unavoidable, and the defense of unavoidability may not be maintained by that defendant." (Cal. Jury Instns., Civ. (4th rev. ed. 1956) No. 134.)

The portions of the instruction which state in effect that no more than ordinary care is required of any defendant are erroneous as applied to defendants Bland and Yellow Cab Company, since a common carrier must exercise the utmost care and diligence for the safety of its passengers for reward. (Civ. Code, section 2100; Finley v. City & County of San Francisco, 115 Cal.App.2d 116, 120-122 [251 P.2d 687]; Pezzoni v City & County of San Francisco, 101 Cal.App.2d 123, 124-125 [225 P.2d 14]) Plaintiff, however, is in no position to complain of this error because, at her request, many other instructions were given which contain the same defect [*] (Zuckerman v. Underwriters at Lloyd's, 42 Cal.2d 460, 470 [267 P.2d 777])

Plaintiff's principal contention is that the giving of any instruction on unavoidable accident was erroneous under the circumstances of this case. The instruction given here is in accord with the decision in Parker v. Womack, 37 Cal.2d 116.

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It was there held that it is not error to instruct, in an intersection collision case, that no recovery can be had if the accident was unavoidable. The court stated that an accident may be "unavoidable or inevitable" where it is caused by a superior or irresistible force or by an absence of exceptional care which the law does not expect of the ordinary prudent man and that the instruction had been held proper where the record included affirmative evidence showing that the accident was proximately caused by circumstances beyond the control of an ordinary prudent man. (37 Cal.2d at pp. 120-121.) The opinion further stated that the defense of unavoidable accident is not limited to cases where there is such evidence and that a determination that an accident is unavoidable is also proper where the evidence merely shows that the plaintiff has failed in his proof. (37 Cal.2d at pp. 121-122.) Two cases holding that the giving of such an instruction was prejudicially erroneous were distinguished upon the ground that in each the evidence established the negligence of the defendant as a matter of law, and subsequent decisions have interpreted the Parker case as standing for the rule that the giving of an instruction on unavoidable accident is proper unless the defendant is negligent as a matter of law. (See, e.g., Driver v. Norman, 106 Cal.App.2d 725, 727 .)

We are of the view that the rule applied in Parker v. Womack, 37 Cal.2d 116 , should be reconsidered. In reality, the so-called defense of unavoidable accident has no legitimate place in our pleading. It appears to be an obsolete remnant from a time when damages for injuries to person or property directly caused by a voluntary act of the defendant could be recovered in an action of trespass and when strict liability would be imposed unless the defendant proved that the injury was caused through "inevitable accident." Although exactly what was covered by this expression is not clear, it apparently included cases where the defendant was utterly without fault. "Unavoidable accident" was then an affirmative defense to be pleaded and proved by the defendant. (See 2 Harper & James, The Law of Torts (1956), 747 et seq.; Prosser on Torts (2d ed. 1955), 118.)

In the modern negligence action the plaintiff must prove that the injury complained of was proximately caused by the defendant's negligence, and the defendant under a general denial may show any circumstance which militates against his negligence or its causal effect. The so-called

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defense of inevitable accident is nothing more than a denial by the defendant of negligence, or a contention that his negligence, if any, was not the proximate cause of the injury. (Scott v. Burke, 39 Cal.2d 388, 401 ; Polk v. City of Los Angeles, 26 Cal.2d 519, 542-543 ; see also Jolley v....

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