Menchaca v. Helms Bakeries, Inc.

• Decision Date: 30 April 1968
• Citation: 67 Cal.Rptr. 775,439 P.2d 903,68 Cal.2d 535
• Court: California Supreme Court
• Parties: , 439 P.2d 903 Richard MENCHACA et al., Plaintiffs and Appellants, v. HELMS BAKERIES, INC., Defendant and Respondent. L.A. 29540

Page 775

67 Cal.Rptr. 775

68 Cal.2d 535, 439 P.2d 903

Richard MENCHACA et al., Plaintiffs and Appellants, v. HELMS BAKERIES, INC., Defendant and Respondent.

L.A. 29540.

Supreme Court of California

April 30, 1968.

Lawrence William Steinberg, Beverly Hills, and Martin Sosin, Los Angeles, for plaintiffs and appellants.

George A. Kuittinen, North Hollywood, and Jean Wunderlich, Los Angeles, for defendant and respondent.

TOBRINER, Justice.

This is an action by plaintiffs Richard and Barbara Menchaca for damages resulting from the wrongful death of their 22-month-old son, Richard Menchaca, Jr., who was killed when run over by a bakery truck operated by an employee of defendant Helms Bakeries. Helms denied its negligence and asserted the contributory negligence of the child's mother, Barbara Menchaca. The trial resulted in a jury verdict for defendant, and plaintiffs appeal.

We shall explain why we have concluded that the court committed prejudicial error in (1) directing the jury that there was no evidence that the truck was negligently equipped, (2) refusing an instruction describing the statutory duty of a driver to sound his horn, and (3) rejecting an instruction on the general duties involved in the exercise of due care. On the other hand, we find no error in the court's refusal to give an instruction requiring that the driver exercise extreme caution. Nor does the record demonstrate prejudicial error in defense counsel's reference to matters within his personal knowledge; if any misconduct occurred, it was promptly corrected by the trial court.

On the day of the accident, defendant's employee, driving the bakery truck on a retail delivery route, stopped at the Blanchard house to fill a standing order for a loaf of bread. As he approached he blew a whistle to attract customers. The driver knew that all along his route children fre quently responded to the whistle and purchased bakery products. He testified that on this occasion he saw four children running down the Blanchard driveway and a fifth child coming from another house; he pulled to the left curb so that they could avoid crossing the street.

Five children, including Richard Menchaca, Jr., had been playing in the backyard of the Blanchard residence. Mrs. Menchaca testified that she had left them there about 10 minutes before the accident, instructing them not to open the fence gate without asking permission. She stated that she frequently checked on the children through a widow, as she put away some groceries for Mrs. Blanchard, but when she looked out the last time the children had disappeared. She went out to find them and had reached the driveway when she heard her son scream.

Apparently one of the children, other than Richard, who was too small, opened the gate of the fence and the older ones ran to the bakery truck, where they took delivery of the bread and bought doughnuts. The driver testified that selling the doughnuts required him to turn to the side and rear of the truck. Although he did not blow his horn before leaving, he looked to see if the children whom he had served had moved away from the truck. Then he started the engine and began to pull forward; at that moment, Richard, who was standing in front of the truck, was struck. When the driver felt the bump and heard Richard scream, he applied his brakes. The truck came to a stop several feet past Richard's body.

1. Direction on the Question of Negligent Equipage

The truck involved in the accident roughly resembles the shape of a box, with a front windshield beginning 52 inches above the roadway. A cake advertisement on the side window of the truck partially obstructs the side vision. The driver sits or stands about six and one-half feet from the front and cannot see the vicinity adjacent to the front bumper. Two mirrors on the side of the truck assist rear vision, and a mirror extending from the front center of the windshield enables the driver to see the middle two feet of the six-foot-long bumper.

In the closing argument plaintiffs' attorney undertook to discuss the subject of negligent equipage of the truck: '(W)e are considering not just the negligence of (the driver) but the negligence, if any, of the company. I mean, the plaintiffs are asserting the negligence of the company with regard to the mode of equipment and maintenance of that truck, which you have only to look at the truck to see what I mean.' Halfway through counsel's next sentence, the court interrupted and on its own motion admonished the jury that '(t)here is no evidence in this case that the truck was improperly constructed or was an improper truck to be used for this purpose. * * *' In fact, plaintiffs had not argued that the truck was improperly constructed; they had contended that the truck was improperly equipped. The court's admonition, however, effectively foreclosed arguments, both as to the construction and the equipment of the truck.

Considerable evidence indicated that the truck had been negligently equipped. Defendant planned and intended the truck to attract children to purchase bakery products from it; defendant knew that a substantial blind spot in front of the truck obscured the vision of the driver; defendant nevertheless equipped the truck with a mirror that revealed to the driver only the central third of the bumper. Surely defendant bore an obligation to equip the truck so as to provide for its safe operation and avoid danger to its expected customers, who were small children. The duty arising from the relationship of vendor-purchaser encompasses at the lease the use of equipment that will not expose the purchaser to danger. (See Schwartz v. Helms Bakery Limited (1967) 67 A.C. 228, 231--232, 235, 60 Cal.Rptr. 510, 430 P.2d 68.)

The testimony showed that Richard became the unfortunate victim of defend ant's alleged breach of duty. Richard, who was 36 inches tall, was standing immediately in front of the truck and probably did not come within the driver's vision because of the truck's blind spot; yet additional mirrors would have made him clearly visible. The court erred, therefore, in removing from the jury's consideration the factually disputed issue of whether or not the truck was negligently and dangerously equipped. (Cf. Forte v. Schiebe (1956) 145 Cal.App.2d 296, 300--301, 302 P.2d 336.)

Defendant replies that neither the pleadings nor the pretrial statement of issues raised the issue of the Construction of the truck. Although we do not reach that question, we note that even if defendant's position were correct, it overlooks the possibility that a well-constructed truck may be negligently Equipped. The complaint alleges that 'the (defendant) * * * negligently entrusted, Managed, maintained, drove and operated the said Helms truck' (italics added) and the plaintiffs' pretrial statement of issues asserts that 'defendant HELMS BROS., INC., was negligent in * * * use, maintenance, and Equipment of the truck. * * *' (Italics added.) Hence defendant was adequately warned that plaintiffs contended that equipage of the truck constituted an issue for trial. ¹

2. Instruction on the Statutory Duty to Sound the Horn

Vehicle Code, section 27001 requires that 'The driver of a motor vehicle when reasonably necessary to insure safe operation shall give audible warning with his horn. The horn shall not otherwise be used.' The authorities clearly indicate the propriety of an instruction in the words of the statute if substantial evidence supports its rendition. (Rush v. Lagomarsino (1925) 196 Cal. 308, 320, 237 P. 1066; Weiss v. Baba (1963) 218 Cal.App.2d 45, 51--52, 32 Cal.Rptr. 137; Jones v. Maynard (1956) 141 Cal.App.2d 643, 649, 297 P.2d 461; Freeland v. Jewel Tea Co. (1953) 118 Cal.App.2d 764, 769, 258 P.2d 1032; see also Hilyar v. Union Ice Co. (1955) 45 Cal.2d 30, 37, 286 P.2d 21.)

Although defendant argues that plaintiffs failed to produce a sufficiently strong showing that the horn was 'reasonably necessary to insure safe operation,' the contention must fail. Defendant urges that the driver testified that he saw only five children and observed that all of them had returned to a position of safety before he started his vehicle. Nothing, however, compelled the jury to believe either that the driver saw only five children or that he concluded that the children whom he did see were clear of the truck. Further, the driver does not satisfy his duty of due care by an exercise of caution as to the children he actually sees; he must anticipate that other children may be in the vicinity. (Hilyar v. Union Ice Co., supra, 45 Cal.2d 30, 36, 286 P.2d 21.) In any event, the issue of whether, knowing of the presence of children, the driver should have sounded his horn constitutes a question of fact whose ultimate resolution rests with the jury.

As we have explained, the structure and equipage of the truck precluded the driver's sight of a child who might be in front of his bumper. Thus, substantial evidence clearly supports plaintiff's theory that under such circumstances the driver should have given warning of his starting the truck; that it was 'reasonably necessary' to sound the horn. This theory, supported as it was in the evidence, should have been expressed in an instruction and submitted to the jury. (Sills v. Los Angeles Transit Lines (1953) 40 Cal.2d 630, 633, 255 P.2d 795; Weiss v. Baba, supra, 218 Cal.App.2d 45, 51, 32 Cal.Rptr. 137.)

Defendant argues that a direction to the jury that a horn shall be sounded when 'reasonably necessary to insure safe operation' does no more than restate the rule which was expressed in any event in other instructions, to the effect that the driver must behave as a reasonably prudent man (cf. Tossman v. Newman (1951) 37 Cal.2d 522, 525, 233 P.2d 1; Hughes v. MacDonald (1955) 133 Cal.App.2d 74, 80--81, 283 P.2d 360). The requested instruction, however, focuses on the peculiar circumstances of the case and calls the jury's attention to a ground...