Abney v. Coalwell
| Decision Date | 05 March 1962 |
| Parties | Jackie ABNEY, a Minor, etc., et al., Jackie ABNEY, a Minor, etc., et al,, Plaintiffs and Appellants, v. Leighton Paul COALWELL et ux., Defendants and Respondents. Civ. 9. |
| Court | California Court of Appeals Court of Appeals |
Dorsey, Bultman & Bianchi, Henry E. Bianchi, Bakersfield, for appellants.
Bradley, Wagy, Bunker & Hislop, Jack W. Bradley, Bakersfield, for respondents.
Jackie Abney, a minor, sued the defendants, Leighton Paul Coalwell and his wife, for injuries received when he was struck by an automobile at the intersection of 6th and San Emidio Streets in the city of Taft on July 2, 1957. The father of the infant, James Abney, joined with him as a plaintiff to seek recovery of his hospital and medical expenses; James Abney, having died, the mother of the child, Euna E. Abney, was substituted as a party. The jury brought in a verdict in favor of the defendants; and the trial court having denied a motion for a new trial, the cause was appealed to this court. The plaintiffs have also purported to appeal from the order denying the motion for a new trial, but this ruling is not itself subject to appeal. (Rodriguez v. Barnett, 52 Cal.2d 154, 156, 338 P.2d 907.)
Appellants raise three principal points, arguing: first, that the evidence does not justify the verdict; secondly, that the court committed error by refusing certain offered instructions requested by the plaintiffs; and thirdly, that defendants' counsel was guilty of prejudicial misconduct by arguing that the act of the child in running into the street was the cause of the accident.
The facts of the case may be briefly summarized as follows: Leighton Paul Coalwell was operating a Chevrolet automobile in a southerly direction on 6th Street, an arterial highway, in the city of Taft prior to and as it intersection with San Emidio Street. At the time of the accident it was dusk; sunset occurred at 8:16 p. m. Pacific Daylight saving time; the police department received a call reporting the accident at 8:43 p. m., which was not quite 30 minutes after sunset. The weather, generally, was clear, but it was 'dusky-dark' outside.
The minor plaintiff was three years old at the time of the accident. He had been playing ball with a group of children in the block west of the intersection. The ball that was being tossed about was thrown over the head of one of the children, and the little boy started out after it, running as fast as he could. There is a divergence of the testimony with respect to the course he took to the point where he collided with the automobile; some evidence indicates that he ran on the sidewalk until he got to the corner and that he then cut across it, not in the pedestrian lane, but in the central part of the intersection until he was struck; there is other testimony that he ran on the side street about 10 feet from and parallel to the southerly curb to the point of the collision.
The Coalwell car was traveling between 15 and 20 miles per hour; as a matter of fact, it was going slower than the average flow of traffic. The headlights of the car were lighted. The little boy was so short that his head was below the headlights of the car.
Mr. Coalwell did not see the plaintiff before the impact. Other witnesses sitting or standing near the point of collision did see the youngster running toward the place where he was struck; these persons included his small sister and people who were at the southwesterly corner of the intersection. The defendant stopped his car within 15 feet of the point of impact, which was less than one car length. The child was lying 9 feet 6 inches north of the south crosswalk and 2 feet west of the center line of 6th Street.
There is no question but that the little boy was badly hurt. He was not guilty of contributory negligence because of his extreme youth; the court so instructed the jury. The court, however, told the jury that the father of the child could be found guilty of contributory negligence with respect to his own claim for restitution of medical and hospital expenses if the evidence justified it. The verdict in favor of the defendants as to all issues conclusively shows that the jury believed that there was no negligence on the part of the defendant driver. We, therefore, have only one basic question in the case to consider on this appeal from the evidentiary standpoint, namely, was there substantial evidence to justify the finding of the jury that no blame attached to Mr. Coalwell?
It is argued, in effect, by appellants that inasmuch as the little boy was incapable of contributory negligence under the law, it must necessarily follow that Mr. Coalwell was negligent. This is obviously an erroneous premise. For accidents happen every day without anyone being legally liable for the result. In an action of this kind the court and jury inquire not only as to what did happen but as to who, it anyone, was to blame. There may be serious injuries without liability. And that is exactly what the jury found and exactly what the trial court approved in ruling on the motion for a new trial.
Upon what factual basis do the appellants claim that the evidence is insufficient to support the verdict? The defendant was driving a new car, in good condition, the brakes being excellent; he was not traveling at an improper rate of speed, but was going only between 15 and 20 miles per hour, somewhat slower even than other traffic on the street. He did not see the child before the accident; but it does not follow under the evidence as presented that this was negligence. The little boy ran suddenly and without warning into the pathway of the automobile. The headlights were lighted, even though technically they did not have to be at that particular moment during the half-hour after sunset. The appellants argue, because certain other witnesses stated they could see the child run into the street, that it was incumbent upon the jury to find that the respondent should likewise have seen him. But this is a non sequitur. The appellants' witnesses Frank Montoya, George Long and Alva Long and the sister of the minor plaintiff observed the small boy before the accident; their position in relation to the child was different from that of the respondent. Simply because some people under one set of circumstances are able to observe something does not require a finder of fact to hold that other persons in different circumstances are negligent if they do not observe the same thing. Taking all of the evidence into consideration and, in line with our duty as an appellate court, assuming that to be true which favors the respondent, it seems clear that the jury had ample grounds upon which to find that the defendant was not guilty of negligence.
Based on timely and pointed requests, a litigant in a civil case is entitled to instructions that are full and fair, complete and comprehensible; if this standard is observed by the trial court, it is not reversible error for a judge to fail to adopt a specific wording or a frozen formula in his charge. Neither plaintiff nor defendant has a vested interest in BAJI or CALJIC.
What did the trial court do in the matter of instructing the jury with respect to the basic question of negligence? Turning to the record in the case, we must conclude that the instructions actually given were ample, fair and correct. The definitions of negligence given by the court to the jury were concise, sound and easily understood. The court further instructed them:
'The amount of caution required of a person in the exercise of ordinary care depends upon the danager [sic] which is apparent to him or should be apparent to a reasonably prudent person in the particular situation and circumstances involved.'
The trial judge then warned the jurors that the standard that is set up by the law is not what an extraordinarily cautious individual or an exceptionally skillful one would do, but how a person of reasonable and ordinary prudence would act. The court continued:
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...refused where the chief factual question to be determined was whether the object of vision was clearly visible. (Abney v. Coalwell, 200 Cal.App.2d 892, 899, 19 Cal.Rptr. 846.) On the other hand, it was not held to be error to give the instruction where the visibility of a train at a railroa......
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...35 Cal.Rptr. 11.) Thus where the evidence as to visibility was conflicting, it was held proper to refuse it. (Abney v. Coalwell, 200 Cal.App.2d 892, 899, 19 Cal.Rptr. 846.) But we have found no case in which it has been held prejudicial error to give the instruction. In the present case the......
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