Arthur v. Santa Monica Dairy Co.

• Decision Date: 03 August 1960
• Citation: 183 Cal.App.2d 483,6 Cal.Rptr. 808
• Court: California Court of Appeals Court of Appeals
• Parties: Robert W. ARTHUR, a minor, by Hugh W. Arthur, his Guardian ad litem, Plaintiff and Appellant, v. SANTA MONICA DAIRY CO., a corporation, doing business under the name and style of Edgemar Farms, and George M. Lewis, Defendants and Respondents. Civ. 24532.

Page 808

6 Cal.Rptr. 808

183 Cal.App.2d 483

Robert W. ARTHUR, a minor, by Hugh W. Arthur, his Guardian ad litem, Plaintiff and Appellant, v. SANTA MONICA DAIRY CO., a corporation, doing business under the name and style of Edgemar Farms, and George M. Lewis, Defendants and Respondents.

Civ. 24532.

District Court of Appeal, Second District, Division 1, California.

Aug. 3, 1960.

Hearing Denied Sept. 27, 1960.

Newton & Irvin, by Robert G. Irvin, Los Angeles, for appellant.

Kinkle & Rodiger, by George P. Kinkle, Jr., Los Angeles, for respondents.

LILLIE, Justice.

Plaintiff appealed from a judgment in defendants' favor rendered by the trial court sitting without a jury. His action was for damages for personal injuries received while riding as a guest in an automobile which collided with the rear of defendants' parked truck. He contends only that the lower court's finding that the accident was not proximately caused by the conduct of the defendants is unsuppported by the evidence. The issue of plaintiff's contributory negligence is not raised on appeal; no finding thereon was made by the trial court, although pleaded as an affirmative defense on which some evidence is found in the record.

We cannot conclude, as urged by appellant, that 'the facts are not in dispute,' for the conduct of the driver of the car in which plaintiff was riding, which appellant in his brief has chosen to ignore and which is here the deciding factor on the issue of proximate cause, was a matter which was determined by the trial court from indirect evidence. However, the following facts, and those relating to defendants' conduct, are not controverted. At the time of the collision, on February 6, 1957, at approximately 11:45 a. m., the weather was sunny and clear; Lincoln Boulevard at the location of the accident was 52 feet wide, admitting two lanes north and two lanes south for travel and a parking on either side of the street; the defendants' Divco milk truck was double parked, facing north, in the right hand lane of traffic next to the line of parked cars, 277 feet south of the south curb line of Wilshire Boulevard (approximately in the middle of the block) between Arizona Boulevard and Wilshire and 12 feet west of the east curb line of Lincoln Boulevard; the milk truck had been double parked there for some time and the driver was away from it delivering milk when the collision occurred; the force of the impact was such as to knock the truck forward about two feet and the Chevrolet, in which plaintiff was riding, back approximately two feet; and there were no skid marks found in the area.

Concerning the conduct of the occupants of the 1951 Chevrolet in which plaintiff was a passenger, in particular that of the driver, we view the evidence in the light most favorable to the judgment. 'In considering appellant's claims of the insufficiency of the evidence it is our duty to so construe the evidence as to support the contentions of respondent to the extent that it is fairly susceptible of such construction, and in cases of conflict to accept as true that evidence which tends to sustain the verdict, unless it is inherently so improbable as to be palpably false (Citation).' Stasulat v. Pacific Gas & Electric Co., 8 Cal.2d 631, 633, 67 P.2d 678, 679; and if several inferences can reasonably be deduced therefrom, this court must accept that which supports the judgment.

Plaintiff, a minor, was one of three high school students riding as a guest in the front seat of a 1951 Chevrolet driven by John Hill. Plaintiff was seated on the right side of the car and between him and the driver sat a third boy, Gene, who was smoking a cigarette. They were traveling north on Lincoln Boulevard in the right hand lane of traffic next to the parked cars, between 20 and 25 miles per hour, at which speed John has driven for approximately 1 1/2 blocks. As they crossed Arizona on Lincoln, traffic was light and there was only one car traveling near--in the lane to their left ahead of them, going in the same direction.

Gene and John were neither available nor testified at the trial. However, evidence from a traffic report shows that after the accident plaintiff told Officer Crouch, who investigated the same, 'I did not see the milk truck before we hit it as I was looking at Gene and John (driver) as they were trying to locate a lighted cigarette on the floor mat between them when the accident occurred.' Plaintiff, at the trial, testified that south of Arizona Boulevard on Lincoln, John, the driver of the Chevrolet, announced that he had been burned by a cigarette and that it had fallen to the floor; that 'within ten seconds' of the collision he bent down to look 'as the other two did' and 'was trying to locate the lit cigarette on the floor of the car'; that the next thing he knew they had hit the truck; and that he did not see defendants' truck at any time before the collision, did not see, feel or hear the driver do anything to avoid colliding with the same, felt no application of brakes of the car in which he was riding before the accident, and no one therein gave any indication before the collision that something might happen.

Although on cross-examination plaintiff attempted to make it clear that he had not personally observed John, the driver, look on the floor for the cigarette before the accident, it is apparent from his prior statements and other evidence in the record that for ten seconds before, and at the time of, the collision the car in which plaintiff was riding was being propelled forward between 20 and 25 miles per hour--in effect with a blind driver, for John was otherwise engaged in looking on the floor mat of his car for a lighted cigarette and was not looking in the street ahead of him, and at no time saw the truck in front of him before he drove into its rear.

Defendants double parked the milk truck in violation of Section 586, Vehicle Code, ¹ which provides in pertinent part '(a) No person shall stop, park, or leave standing any vehicle whether attended or unattended, except when necessary to avoid conflict with the other traffic or in compliance with the directions of a peace officer of traffic control signal device, in any of the following places * * *

'(8) On the roadway side of any vehicle stopped, parked or standing at the curb or edge of a highway'; and it cannot be denied that defendants' conduct constituted negligence (Thomson v. Bayless, 24 Cal.2d 543, 150 P.2d 413).

This brings us to the question of proximate cause. Although, as suggested by appellant, it becomes one of law when the facts are undisputed and only one conclusion may be drawn therefrom, it is apparent from the record before us that the issue of proximate cause in the instant case is essentially one of fact (Mosley v. Arden Farms Co., 26 Cal.2d 213, 157 P.2d 372, 158 A.L.R. 872; Fennessey v. Pacific Gas & Electric Co., 20 Cal.2d 141, 124 P.2d 51; Fowler v. Callis, 159 Cal.App.2d 746, 324 P.2d 728; Been v. The Lummus Co., 76 Cal.App.2d 288, 173 P.2d 34; Thomson v. Bayless, 24 Cal.2d 543, 150 P.2d 413).

Appellant in his brief has avoided discussion of the negligent conduct on the part of the driver of the Chevrolet; and has summarily disposed of the matter by stating that the negligence of the driver cannot be imputed to the plaintiff which, of course, is a correct statement of the law (Hill v. Ralph, 117 Cal.App.2d 434, 256 P.2d 48). However, applying the following rules relating to proximate cause, the negligent conduct of the driver of the Chevrolet is that which appears to constitute the intervening act which broke the chain of causation and which constituted the proximate cause of the accident.

We do not here have the simple case of direct causation, but one in which an independent force, consisting of the negligent conduct of the driver of the Chevrolet, intervened. Appellant contends, however, that had defendants' truck not been illegally parked the collision would not have occurred, thus the double parked milk truck was the proximate cause of the accident. It would indeed be nonsense to say that had the truck not been there the Chevrolet would still have run into its rear; but it is not nonsence to suggest that had def...