Bristow v. Brinson

• Decision Date: 21 January 1963
• Citation: 27 Cal.Rptr. 796,212 Cal.App.2d 168
• Court: California Court of Appeals Court of Appeals
• Parties: Roy BRISTOW, Plaintiff and Appellant, v. Marjorie Luther BRINSON, Martin L. Brinson and Thomas P. Bristow, et al., Defendants and Respondents. Civ. 6889.

Page 796

27 Cal.Rptr. 796

212 Cal.App.2d 168

Roy BRISTOW, Plaintiff and Appellant, v. Marjorie Luther BRINSON, Martin L. Brinson and Thomas P. Bristow, et al., Defendants and Respondents.

Civ. 6889.

District Court of Appeal, Fourth District, California.

Jan. 21, 1963.

Rehearing Denied Feb. 18, 1963.

Hearing Denied March 20, 1963.

Corfman & Schwab, Santa Ana, for appellant.

Banyard, Portigal & Hayden and Clarence E. Sprague, Santa Ana, for respondents.

GRIFFIN, Presiding Justice.

On September 12, 1958, plaintiff-appellant Roy Bristow and his wife, Ettie May Bristow, were riding as guests in a Ford automobile owned and operated by defendant-respondent Thomas P. Bristow, the brother of Roy Bristow. At the intersection of Fairhaven Avenue and State Highway 55 (or Tustin Avenue), this car collided with a Cadillac automobile operated by defendant-respondent Marjorie Brinson and owned by defendant-respondent Martin L. Brinson. As a result of the accident, Ettie May Bristow died and Roy Bristow was injured. Appellant brought this action against his brother on the theory of willful misconduct and against Marjorie Brinson and Martin L. Brinson, claiming that Marjorie Brinson had been negligent in the operation of the Brinson vehicle.

At the close of plaintiff's case, all defendants made motions for nonsuit. These motions were granted on the theories that: as to defendant Thomas Bristow, his running the stop sign which governed his eastward movement on Fairhaven Avenue did not constitute willful misconduct; as to Marjorie Brinson and Martin L. Brinson, that Marjorie Brinson was not negligent in the operation of the Brinson vehicle. Plaintiff has appealed from the judgment of nonsuit.

The evidence adduced at the trial indicates that the scene of the collision was the intersection of Fairhaven Avenue and State Highway 55, in Orange County. The Bristows were traveling east on Fairhaven Avenue and Marjorie Brinson was traveling south on State Highway 55. Traffic at this intersection is controlled by two standing octagonal reflector stop signs facing east-west traffic on Fairhaven Avenue so as to cause vehicles to stop before crossing State Highway 55. The roadway of Fairhaven Avenue west of State Highway 55 is 29 feet wide. A solid white center line divides it into a westbound lane 19 1/2 feet wide and an eastbound lane 9 1/2 feet wide, with a 10-foot shoulder. The eastbound lane has a wavy line next to the center line and the word 'STOP' was painted on the roadway at the edge of State Highway 55. These markings were badly faded at the time of the collision. In addition, there was a 'STOP AHEAD' sign and the words 'STOP AHEAD' were painted on the roadway some 350 to 400 feet back from the intersection facing the eastbound lane of Fairhaven Avenue.

Near the intersection involved, State Highway 55 has two concrete surfaced lanes, each approximately 10 feet wide. On either side there are improved shoulders about three feet wide. These slope off into shallow ditches on both sides of the roadway. A row of eucalyptus trees was located west of the ditch on the west side of State Highway 55. In addition, along the west side of State Highway 55 there was a concrete block wall about six feet high. Near the intersection with Fairhaven Avenue, this wall turns west and runs in a westerly direction along the north edge of Fairhaven Avenue. The wall is located so as to make this a blind intersection for cars proceeding in the directions the automoblies here involved were going. The speed limit on State Highway 55 was 55 miles per hour, and it is a through highway. The accident occurred after dark, about 8:00 p. m. No street lights or artificial illumination was in the vicinity.

Plaintiff testified that he and his wife went with defendant Bristow and his wife (who was also killed in the collision) to visit the latter's son-in-law. During this social visit, there was no unpleasantness and no show of temper. Everyone was in a friendly mood when the two couples began to return home. The accident occurred on the return trip. The plaintiff testified that during this trip defendant Bristow drove in a proper manner until they reached State Highway 55. He stopped his automobile where traffic signals required this. There were no arguments or disputes between the occupants of the Bristow automobile during the drive home. Approaching the scene of the collision, the automobile was traveling at 40 miles per hour. There was no conversation in the car and defendant Bristow was looking straight ahead. Defendant Bristow drove the car through the stop sign without applying his brakes or slowing down. Plaintiff saw the stop sign when the car was 20 feet from it, but he said nothing prior to the collision.

Portions of defendant Bristow's deposition were read into the record. He said that he frequently traveled on Fairhaven Avenue and knew the location of the stop sign where Fairhaven crossed State Highway 55. He knew that this was a blind intersection. Portions of Marjorie Brinson's deposition were also read into the record. She said that she had gone out to get some eggs for her mother and was traveling about 45 miles per hour on the return trip as she approached the intersection. Her car had good brakes, its windshield was clean and its headlights were on. As she approached the intersection, she saw a westbound automobile on Fairhaven Avenue stopped back of the stop sign. She saw some headlight beams shining into the intersection in front of her and thought they were from this stopped automobile. She continued on in the right-hand lane. She did not see any other car as she approached the intersection and she did not see the Bristow car at all before the impact.

The Bristow automobile was damaged on the left side and the Brinson vehicle was damaged on the front end. There were no tire skid marks on the highway leading up to the point of impact.

Preliminarily, it must be stated that on an appeal from a nonsuit, the reviewing court must view the evidence in the light most favorable to the plaintiff. In applying this general rule, we must:

'* * * resolve every conflict in the testimony in favor of plaintiffs, consider every inference which can reasonably be drawn and every presumption which can fairly be deemed to arise in support of plaintiffs, and accept as true all evidence adduced, direct and indirect, which tends to sustain plaintiffs' case.' (Coates v. Chinn, 51 Cal.2d 304, 305, 332 P.2d 289, 291.)

Testimony adduced pursuant to Code of Civil Procedure, section 2055, is to be treated as evidence in the case insofar as favorable to plaintiff. (Crowe v. McBride, 25 Cal.2d 318, 319, 153 P.2d 727.) If, after applying the above test, the evidence is sufficiently substantial to support a verdict for the plaintiff, the judgment of nonsuit cannot be sustained. As was said in the concurring opinion in Jones v. Hotchkiss, 147 Cal.App.2d 197, 205, 305 P.2d 129, 134:

'However dubious a plaintiff's case may appear to a reviewing court the functions of the jury must be respected and there can be no weighing of the facts beyond the inquiry whether the case of the plaintiff's entirely devoid of substantial support in the evidence.'

Plaintiff argues that respondent Marjorie Brinson was negligent because she did not observe the beams from the headlights of the Bristow vehicle; that she should have deduced from the movements of these beams of light that the car from which they were emanating was proceeding at a high rate of speed and that it was not stopping; and that she should have taken steps to avoid the collision. It is also argued that respondent Marjorie Brinson should have slowed her vehicle and looked to the right before she entered the intersection because she was aware that it was a blind intersection from that direction.

Initially, it must be observed that a motorist proceeding along a through street or highway protected by stop signs has the right-of-way at intersections over motorists on intersection thoroughfares, even as against vehicles approaching from the right. The motorist on the through highway may assume that the driver of a car on the intersecting highway will observe the law. If the law requires the motorist on the intersecting highway to stop, the driver on the through highway may assume that he will stop and yield the right-of-way as the law requires. (Kirk v. Los Angeles Ry. Corp., 26 Cal.2d 833, 838-839, 161 P.2d 673, 164 A.L.R. 1; Guerra v. Balestrieri, 127 Cal.App.2d 511, 516, 274 P.2d 443; 59 A.L.R.2d 1220-1222; 5A Am.Jur. § 322, p. 428.) Here, therefore, respondent Marjorie Brinson was entitled to assume that all vehicles approaching State Highway 55 from the right or left would stop and yield the...