Ballard v. Augustine

• Decision Date: 08 June 1959
• Citation: 339 P.2d 859,171 Cal.App.2d 206
• Court: California Court of Appeals Court of Appeals
• Parties: William A. BALLARD, Plaintiff and Respondent. v. Thomas AUGUSTINE et al., Defendants and Appellants. Peter Lawrence DIVIZICH, Plaintiff and Respondent, v. William A. BALLARD et al., Defendants, Pete Jurkovich et al., Appellants. Civ. 6009.

Page 859

339 P.2d 859

171 Cal.App.2d 206

William A. BALLARD, Plaintiff and Respondent. v. Thomas AUGUSTINE et al., Defendants and Appellants.

Peter Lawrence DIVIZICH, Plaintiff and Respondent, v. William A. BALLARD et al., Defendants, Pete Jurkovich et al., Appellants.

Civ. 6009.

District Court of Appeal, Fourth District, California.

June 8, 1959.

Hanna & Brophy, San Francisco, and Oren, McCartney, Sells & Edman, Fresno, for appellants.

Bradley, Wagy, Bunker & Hislop, Bakersfield, for respondent Ballard.

Fuller, Christenson & Kralowec, Porterville, for respondent Divizich.

MUSSELL, Justice.

This is an appeal in two personal injury actions which were consolidated for trial by stipulation of the parties. The appellants, Thomas Augustine, an individual, Bob Jurkovich, Nina Jurkovich, Vincent Jurkovich, and Peter Jurkovich, individually and as copartners doing business as Porterville Cement Pipe Company (hereinafter referred to as defendants Jurkovich) were named as defendants in the first action, Superior Court No. 50167, in which William A. Ballard was plaintiff. The second action, Superior Court No. 50399, was brought by Peter Lawrence Divizich against William A. Ballard and defendants Jurkovich. A jury trial resulted in a verdict in each case against the defendants Jurkovich and exonerated Ballard and Divizich in their respective capacities as defendants.

The collision out of which these actions arose occurred at approximately 5:35 p. m. on December 14, 1956, on Highway 65 about a mile north of Ducor in Tulare county. The highway, with two traffic lanes, runs north and south, and the macadam portion at the place of the accident is approximately 22 feet wide. Ballard was traveling north in his Chevrolet automobile when his car struck a G.M.C. pickup being driven south in the southbound traffic lane.

After noon on the day of the accident, Thomas Augustine, an employee of the Porterville Cement Company, was operating an International pickup truck and pulling a large two-wheel trailer in a northerly direction on Highway 65, approximately one mile north of Ducor. On the two-wheel trailer was loaded a T.D.-6 International bulldozer with a blade attached. Augustine's truck developed motor trouble and he pulled his equipment off the paved portion of the highway and parallel to it, with the left side of the equipment approximately nine feet from the east edge of the asphalt portion of the highway. Augustine hitchhiked to Terra Bella, where he phoned the yard of the Porterville Cement Pipe Company and talked to Pete Jurkovich, who then drove to Terra Bella and picked up Augustine at a service station. Augustine and Jurkovich then drove south past the stalled equipment in a two-ton International truck. Jurkovich made a 'U' turn and parked on the east side of the highway south of the equipment. It was then about 5:00 p. m. and was getting dark. Augustine and Jurkovich unhooked the trailer from the stalled pickup truck and backed the tractor off of the trailer. Jurkovich then got in the stalled pickup truck and Augustine, driving the tractor, pushed the pickup truck about 75 feet north of the trailer to get it out of the way so that the two-ton truck could be attached to the front of the trailer. The bulldozer tractor was then maneuvered into a position at a 45 degree angle to the west side of the two-wheel trailer and the blade put underneath the tongue at the front of the trailer. The left rear corner of the bulldozer was then partially in the northbound traffic lane of the traveled portion of the highway. Immediately thereafter Jurkovich drove the two-ton truck out onto the main traveled portion of the highway, blocking the northbound lane. At this time it was dark.

Ballard, in his Chevrolet sedan, approached the scene from the south. He was traveling between 55-60 miles per hour. The highway was straight and there were dips or swales in it. As he approached the equipment he saw two or three clearance lights along the side of a truck bed which was crossing the highway, traveling from east to west. He applied his brakes hard, laying down 65 paces of skid marks. Ballard's car skidded broadside into the southbound traffic lane and struck the Divizich G.M.C. truck, which was traveling south. The record shows that Divizich applied his brakes but that he had no recollection of the accident due to injuries sustained.

Both Augustine and Jurkovich admitted that the two-ton truck had pulled onto the highway from the east side, moving to the west immediately before the impact; that they did not use flares until after the accident; and that they loaded the bulldozer on the trailer after the accident and before the highway patrol officer arrived at the scene. Jurkovich testified that he moved the tractor after the collision because it might be in the way of oncoming traffic and the record shows that he stated to a highway patrol officer that he had just pulled off the road when the accident happened.

Appellants' first contention is that the verdict against defendants Jurkovich is not supported by any substantial evidence of record. In Realty Co. of America v. Burton, 160 Cal.App.2d 178, 190, 325 P.2d 171, 178, the court said:

'The function of and limitation upon an appellate tribunal in the determination of a claim of 'insufficiency of the evidence' is thus enunciated in Bedford v. Pacific S. W. Corp., 121 Cal.App. 162, 163, 8 P.2d 558, 559:

"It is a common-place of appellate procedure that every intendment is to be indulged by the appellate court in favor of the trial court's findings; that only the evidence most favorable to the successful litigant is to be considered, that, where divergent inferences reasonably may be drawn from the evidence, that inference is to be indulged which will support the trial court's action; and that with all this in mind, unless the court can say on appeal that the findings are wholly without substantial support in the evidence, they cannot be disturbed. It is not sufficient that upon the same evidence the appellate court might have reached a different conclusion as triers of the facts. The burden is upon the appellant to demonstrate that as a reasonable man the trial judge could not reasonably have reached the conclusion that he did from the evidence before him."

The record shows that Ballard, who was an experienced driver, was driving on a straight and open highway; that he was well acquainted with this particular stretch of highway; that he was traveling between 55-60 miles per hour; that when he was about 300 feet from the scene of the accident he first saw the clearance lights along the...