Beck v. Kessler

• Decision Date: 24 June 1965
• Court: California Court of Appeals Court of Appeals
• Parties: Florence A. BECK and Mildred Pratt, Plaintiffs and Respondents, v. Jack KESSLER, Defendant and Appellant. Civ. 22139.

Page 237

45 Cal.Rptr. 237

235 Cal.App.2d 331

Florence A. BECK and Mildred Pratt, Plaintiffs and Respondents, v. Jack KESSLER, Defendant and Appellant.

Civ. 22139.

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

June 24, 1965.

Bacon, Mundhenk, Stone & O'Brien, San Francisco, for appellant, Herbert Chamberlin, San Francisco, of counsel.

Thomas E. Feeney, San Francisco, for respondents.

SULLIVAN, Presiding Justice.

In this action for damages for personal injuries defendant appeals from an adverse judgment, entered on jury verdicts, in favor of plaintiff Florence A. Beck in the sum of $8,000 and plaintiff Mildred Pratt in the sum of $10,000.

On June 10, 1961, at about 3 a. m. plaintiffs were passengers in a taxicab en route from San Francisco to Daly City. The cab, southbound on Junipero Serra Boulevard, had stopped because of a red traffic control signal at the intersection of 19th Avenue when it was struck in the rear by an automobile driven by defendant. The weather was clear, the streets dry and the intersection well-lighted. On Junipero Serra Boulevard northbound traffic and southbound traffic were separated by a dividing strip or raised curbing. Plaintiffs' taxicab was stopped in the center lane of three south-bound traffic lanes. There was no other traffic in the immediate area at the time. After the cab had been stopped in the above position for a few seconds, plaintiffs saw bright lights approaching them from the rear and then felt the sudden impact.

Defendant, called as a witness by plaintiffs under Code of Civil Procedure section 2055, testified that between 10 p. m. and midnight on June 9, 1961, he had a couple of beers at the Avalon Ballroom in San Francisco. After that he was at a bar for a few hours during which time he had a few more beers. At the time of the accident he was going to his home in South San Francisco. He could not remember whether the intersection was well-lighted or in which traffic lane he was driving. He could see the traffic lights at the intersection but could not recall what their color was at any time during the last half block up to the time of the collision. Nor could he remember whether there were any vehicles in the immediate area other than his own and the cab. He stated that he was driving 'about the speed limit * * * at the regular speed, 35 miles an hour'; that he was looking through his windshield which was clear; that there was nothing to prevent his seeing the cab; that he just kept driving at the same speed until he was a short distance from the cab when he suddenly applied his brakes; that 'As I seen it, I tried to avoid it, and I just grabbed--just grabbed the right hand of my car, just grabbed the end of it, and that's how the impact came'; and that the collision occurred with a loud crash, although he believed his car hit only the left corner of the cab 'because that's all--I--I could, if I had to, turn that wheel a little bit more. I probably would have missed him.'

At the conclusion of this examination by plaintiffs' counsel, ¹ defendant left the stand. There was no redirect examination by defendant's own counsel. After brief testimony on recall of Mrs. Beck, plaintiffs rested. Defendant then rested without offering any evidence in defense. At the close of the evidence, plaintiffs made a motion for directed verdicts on behalf of plaintiffs and against defendant on the issue of liability which the court granted, advising the jury accordingly at that time ² and subsequently so instructing them. ³

The sole question which defendant raises on appeal is this: Did the court err in directing a verdict against defendant on the issue of liability? Plaintiffs urge us not to consider the question on the ground that defendant has waived his right to raise it on appeal by failing to object to the motion for a directed verdict and by acquiescing in the court's ruling thereon. However, we are of the view that whatever may have been the antecedent proceedings, defendant's attack is directed at the court's instruction to the jury and that 'An erroneous instruction can always be challenged on appeal.' (Cummings v. County of Los Angeles (1961) 56 Cal.2d 258, 264, 14 Cal.Rptr. 668, 672, 363 P.2d 900, 904; Rivera v. Parma (1960) 54 Cal.2d 313, 316, 5 Cal.Rptr. 665, 353 P.2d 273; Barrera v. De La Torre (1957) 48 Cal.2d 166, 170, 308 P.2d 724 (cited by plaintiffs on another point); Valentine v. Kaiser Foundation Hospitals (1961) 194 Cal.App.2d 282, 290, 15 Cal.Rptr. 26; Guyton v. City of Los Angeles (1959) 174 Cal.App.2d 354, 361, 344 P.2d 910; Code Civ.Proc. § 647.) We turn to the issue at hand.

Applicable here are the following principles set forth in Walters v. Bank of America (1937) 9 Cal.2d 46, 49, 69 P.2d 839, 840, 110 A.L.R. 1259: 'The trial court, in a proper case, may direct a verdict in favor of a party upon whom rests the burden of proof, in this case the plaintiff. Substantially the same rules apply to directed verdicts in favor of plaintiffs as apply to such verdicts in favor of defendants. [Citations.] A directed verdict may be granted, when, disregarding conflicting evidence, and indulging every legitimate inference which may be drawn from the evidence in favor of the party against whom the verdict is directed, it can be said that there is no evidence of sufficient substantiality to support a verdict in favor of such party, if such a verdict has been rendered. [Citations.] In passing on the propriety of the trial court's action in directing a verdict, the doctrine of scintilla of evidence has been rejected in this state. [Citation.] A motion for a directed verdict may be granted upon the motion of the plaintiff, where, upon the whole evidence, the cause of action alleged in the complaint is supported, and no substantial support is given to the defense alleged by the defendant. [Citations.]' (See also Parker v. James Granger, Inc. (1935) 4 Cal.2d 668, 678-679, 52 P.2d 226, cert. denied 298 U.S. 644, 56 S.Ct. 958, 80 L.Ed. 1375; Transport Clearings-Bay Area v. Simmonds (1964) 226 Cal.App.2d 405, 418; Price v. Atchison, T. & S. F. Ry. Co. (1958) 164 Cal.App.2d 400, 408, 330 P.2d 933.)

Faced with this settled criterion, defendant claims that his own testimony is susceptible of the inference that he was not acting negligently. He argues that 'Time and again the appellate courts of this state have applied and approved the rule that whether the operator of the rear car was negligent in colliding with the car ahead presents a question of fact and not of law' although in fairness it must be noted that at oral argument defendant's counsel stated to us that he did not hold to such thesis in all cases as an absolute rule of law.

The applicable rule is stated by Justice Schauer in Gray v. Brinkerhoff (1953) 41 Cal.2d 180, 183-184, 258 P.2d 834, 836: 'Whether or not defendant was guilty of negligence [citations] or plaintiff was guilty of contributory negligence [citations] is ordinarily a question of mixed fact and law and may be determined as a matter of law only if reasonable men following the law can draw but one conclusion from the evidence presented. [Citations.]' (See also Callahan v. Gray (1955) 44 Cal.2d 107, 111, 279 P.2d 963; Hudson v. Rainville (1956) 46 Cal.2d 474, 477, 297 P.2d 434; Pierce v. Black (1955) 131 Cal.App.2d 521, 525, 280 P.2d 913; Tannyhill v. Pacific Motor Trans. Co. (1964) 227 Cal.App.2d 512, 521; for examples of cases in which negligence was found to exist as a matter of law see: Gray v. Brinkerhoff, supra; Lawson v. Lester (1961) 191 Cal.App.2d 34, 36, 12 Cal.Rptr. 368; ⁴ Pierce v. Black, supra; Edlund v. Los Angeles Ry. Co. (1936) 14 Cal.App.2d 673, 675, 58 P.2d 928; Christy v. Herbert M. Baruch Corp. (1933) 135 Cal.App. 355, 363, 27 P.2d 660.)

It is implicit in the rule stated in Gray v. Brinkerhoff, supra, that whether or not reasonable men can draw but one conclusion of negligence from the evidence depends on the facts and circumstances of the particular case. Generally speaking, the question of negligence as well as of contributory negligence and proximate cause are questions of fact for the determination of the trier of fact (Austin v. Riverside Portland Cement Co. (1955) 44 Cal.2d 225, 234, 282 P.2d 69; Wahlgren v. Market Street Ry. Co. (1901) 132 Cal. 656, 663, 62 P. 308, 64 P. 993; Nigro v. West Foods of California (1963) 218 Cal.App.2d 567, 573, 32 Cal.Rptr. 692; Barry v. Bruce (1962) 200 Cal.App.2d 335, 337-338, 19 Cal.Rptr. 518; Negra v. L. Lion & Sons Co. (1951) 102 Cal.App.2d 453, 458, 227 P.2d 916) and, overall, the instances are rare where the question of defendant's negligence is not one of fact. Basically, the answer to the problem is found in a rational analysis of the evidence.

Thus in rear-end collision cases this court and other appellate courts have pointed out that whether the driver of the rear car was negligent in colliding with the car in front presents a question of fact rather than of law since it depends upon all the circumstances of the particular case. (Wholenberg v. Malcewicz (1943) 56 Cal.App.2d 508, 513, 133 P.2d 12; Oliver v. Boxley (1960) 181 Cal.App.2d 471, 474-475, 5 Cal.Rptr. 468; Kramer v. Barnes (1963) 212 Cal.App.2d 440, 448, 27 Cal.Rptr. 895; See also Elford v. Hiltabrand (1944) 63 Cal.App.2d 65, 74, 146 P.2d 510.) It has been said that 'the mere fact that a vehicle is moving in close proximity to another one ahead of it, and keeping up with it, does not of itself constitute negligence per se' (Gornstein v. Priver (1923) 64 Cal.App. 249, 255, 221 P. 396, 399), that it is not the law 'that an automobile driver is necessarily guilty of negligence because he collides with the rear of another vehicle' (Elford v. Hiltabrand, supra), and that whether the driver of the rear car is negligent 'almost invariably presents a question of fact * * *' (Gornstein v. Priver, supra).

On the other hand, generally speaking, there is a permissible inference of negligence from the...