Bardin v. Case

• Decision Date: 22 August 1950
• Court: California Court of Appeals Court of Appeals
• Parties: BARDIN v. CASE et al. (two cases). Civ. 17127, 17128.

Page 292

221 P.2d 292

99 Cal.App.2d 137

BARDIN v. CASE et al. (two cases).

Civ. 17127, 17128.

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

Aug. 22, 1950.

Rehearing Denied Sept. 11, 1950.

Hearing Denied Oct. 19, 1950.

Forrest A. Betts, Betts, Ely & Loomis, all of Los Angeles, William C. Ring, Los Angeles, of counsel, for appellant F. W. Case.

Walter C. Harbert, Lasher B. Gallagher, Los Angeles, for appellant J. M. Loyd.

Thomas F. McGrath, Spray, Gould & Bowers, Los Angeles, for respondents.

WHITE, Presiding Justice.

These appeals arise out of two actions brought respectively by Robert S. Bardin and his wife, Aline Bardin, to recover damages for personal injuries sustained by them in a collision between a Dodge automobile driven by Mr. Bardin and a Plymouth automobile operated by defendant J. M. Loyd and registered in the name of defendant F. W. Case. The two actions were consolidated for trial and heard before a jury, which returned verdicts in favor of each of the plaintiffs and against both defendants. Judgments were entered on the verdicts, the judgments against defendant Case in each action being limited to $5,000.00 under the provisions of section 402 of the Vehicle Code. Each of the defendants has appealed from the respective judgments against him.

The two main contentions of appellant Case are that the court erred in instructing the jury that as a matter of law defendant Loyd was operating the Plymouth automobile with the permission of Case, and erred in instructing the jury that there was no evidence of contributory negligence on the part of plaintiffs. The only contentions of appellant Loyd are that the court erred in taking the issue of contributory negligence from the jury and in refusing Loyd's profferred instructions on the subject of contributory negligence.

Turning to the evidence, it appears that at about noon on August 24, 1947, plaintiff, with his wife as a passenger, was driving north on Highway 99 (the Ridge Route), and defendant Loyd was driving south on the same highway. The weather was clear and the pavement dry. The paved portion of the roadway contained three marked lanes. The accident occurred at a point about 25 feet north of the northerly entrance to a service station known as 'Five Mile Garage' located on the east side of the highway about five miles south of the summit of the Ridge Route. As the two vehicles approached the service station, each in its proper lane, the Loyd car suddenly vered to its left, came diagonally across the road, and struck the Bardin vehicle, which had been swerved to the right in an effort to avoid the collision. When the cars came to rest, the Loyd car was on the pavement facing southeast, while plaintiffs' car faced northeast and was partly on the pavement and partly on the shoulder. The State Highway Patrol found twenty feet of skid marks behind plaintiffs' car and seventy feet of skid marks behind the car of defendant Loyd. Just above the Five-Mile Garage the roadway curves to the northwest. From the diagram contained in the appendix to appellant Case's brief, it would seem that the Loyd car did not swerve, but simply failed to follow the curve in the roadway, with the result that it proceeded directly into the path of plaintiffs' car.

There were no eyewitnesses to the accident other than the persons involved. Plaintiff Mrs. Bardin testified that her injuries caused a lapse of memory as to events preceding and following the accident, and she could recall none of the circumstances of the collision. Defendant Loyd also testified that as a result of his injuries he could not recollect the circumstances of the collision.

Considering the claim of both appellants that the jury should have been permitted to find on the issue of contributory negligence, it becomes necessary to summarize the testimony of plaintiff Robert S. Bardin. In substance, he testified that he saw the other car coming down grade in the right-hand lane when it was possibly 100 to 150 yards away. There were no cars ahead of him. When the distance between the two cars was between 125 and 150 feet, the other car suddenly changed direction and headed straight across the highway, when it became apparent to him that there was going to be a collision; that there was 'absolutely nothing that could be done' about it. He headed his car for the right-hand side of the highway and immediately put on his brakes while he was two or three feet inside the lane. The shoulder to his right was about eight feet wide. The impact rendered him momentarily unconscious. On cross-examination he testified that he had maintained a speed of 35 miles per hour until he anticipated the collision. He had traveled the Ridge Route several times. He was in a position to observe the Five-Mile Garage when he was about 100 yards away from it. As he approached the garage he was aware of the possibility of automobiles going in and out and that in traversing the Ridge Route automobiles frequently become hot and are parked at service stations, but he did not recall any cars parked at the time of the accident.

Defendant Loyd testified under section 2055 of the Code of Civil Procedure, that he stopped for fuel, food and a short rest of about one hour south of Merced, and stopped again for 'naps' south of Fresno and Bakersfield. We did not believe he was asleep just before the accident, but did not recall the impact. He did not recall stating after the accident that he had been without sleep or that he fell asleep before the accident, and did not recall a purported statement to the Highway Patrol apparently bearing his signature. His last recollection before the accident was rounding a slight curve north of the Five-Mile Garage. He testified he was alert and his sight unimpaired. He 'had in mind that having climbed most of the grapevine and starting down on the other side, I might need to have gas and oil checked.' He recalled seeing the plaintiffs' car, but nothing further concerning the accident.

A doctor called by plaintiff testified on cross-examination that plaintiff Robert S. Bardin had previously suffered from a broken back, requiring extensive treatment, and that he had also treated him for an exophthalmic goitre. It was admitted that Mr. Bardin wore tinted glasses, that most of his teeth had been extracted, and that he was afflicted with hay fever. It was further undenied that Mrs. Bardin was the registered owner of the Dodge automobile and a competent motor vehicle operator.

Appellant Case urges that the jury might have found, 'from conflicting evidence or inferences that plaintiffs or either of them were contributorily negligent.' The argument in this respect occupies fifteen pages in appellant's brief. Summarized, it is that under the evidence the jury might have reasonably concluded that Mr. Bardin failed to act as a reasonably prudent man, in that he could have braked more sharply and turned to the left into the center or passing lane, and thus avoided the accident; and further, that Mrs. Bardin, knowing of her husband's previous back injury, his previous operation for goitre, resulting possibly in slowed reaction, and his eye condition which required tinted glasses, was negligent in not either taking control of the vehicle prior to the accident or acting to aid in prevention of the accident when she saw the vehicle of defendants approaching. The same contentions are advanced by appellant Loyd. These arguments, ably presented as they are, cannot prevail.

There is no question here as to the principles to be applied. Contributory negligence, like negligence, is a question of fact for the jury, except where the trial court can hold as a matter of law that only one inference can be rationally drawn from the evidence. Anthony v. Hobbie, 25 Cal.2d 814, 818, 155 P.2d 826; Blank v. Coffin, 20 Cal.2d 457, 126 P.2d 868; Kosloskye v. Cis, 70 Cal.App.2d 174, 160 P.2d 565. The question presented to us is whether, under the evidence, any inference of contributory negligence can rationally be drawn. We are of the view that the record presents no substantial evidence to warrant such an inference. The possibility of such negligence may be conceded, but that is not sufficient. An inference of fact must be based upon substantial evidence, not conjecture. 'In order to justify the submission of any question of fact to a jury, the proof must be sufficient to raise more than a mere conjecture or surmise that the fact is as alleged. It must be such that a rational, well-constructed mind can reasonably draw from it the conclusion that the fact exists; and, when the evidence is not sufficient to justify such inference, the court should refuse to submit the question to the jury.' In re Calkins' Estate, 112 Cal. 296, 306, 44 P. 577, 580.

Appellant Case argues that the jury could have found from the evidence that Mr. Bardin, who was familiar with the route, knew or should have known, that cars might cross the highway in order to stop for service at the garage; that he saw Loyd's car change direction while 150 feet away and then believed a collision was imminent; that a collision could have been avoided only if plaintiffs' car was slowed sufficiently to enable Loyd to pass in front of it, or if plaintiffs' car was turned to the left so as to pass behind Loyd's car. It is pointed out that plaintiffs' brakes were in good condition, and therefore their car could have been stopped within less than 113 feet, but that there were only 20 feet of skid marks behind the plaintiffs' car. The jury could have found, it is urged, that Mr. Bardin was negligent in that, perceiving the imminence of collision, he failed to turn the five or six feet to the left which would have prevented the accident.

It is argued, in effect, that Mr. Bardin should have anticipated a car turning toward the garage. The evidence is that the accident occurred 25 feet north of the north entrance to the garage. There is no evidence that...