Brooks v. E. J. Willig Truck Transp. Co.

• Decision Date: 14 April 1953
• Citation: 255 P.2d 802,40 Cal.2d 669
• Parties: BROOKS et al. v. E. J. WILLIG TRUCK TRANSP. CO. et al. S. F. 18646
• Court: California Supreme Court

Page 802

255 P.2d 802

40 Cal.2d 669

BROOKS et al. v. E. J. WILLIG TRUCK TRANSP. CO. et al.

S. F. 18646.

Supreme Court of California

April 14, 1953.

Rehearing Denied May 7, 1953.

Dana, Bledsoe & Smith Paul C. Dana and Morton B. Jackson, San Francisco, for appellants.

James C. Purcell and Michael Riordan, San Francisco, for respondents.

GIBSON, Chief Justice.

Plaintiffs seek recovery for the wrongful death of John Brooks who was struck and run over by a truck which belonged to defendant company and was being driven by its employee, defendant Farnsworth. Defendants appeal from a judgment entered on a jury verdict for plaintiffs contending that prejudicial errors were committed by the trial court in admitting and excluding evidence and in instructing the jury.

The accident occurred around 11 o'clock at night on a level, unlighted portion of U. S. Highway 101 near its intersection with State Route 37. At this point, U. S. 101 lies in open country and is a four lane north-south highway with its northbound lanes separated from its southbound lanes by a dividing strip. Decedent Brooks, a chief petty officer in the Navy, was in the area on foot and was apparently attempting to secure a ride north to Eureks where his wife and child lived. There were no eyewitnesses to the accident other than defendant Farnsworth, who was driving an empty truck northward on Highway 101. He was travelling in the outside lane at a speed of approximately 45 miles per hour when he first saw Brooks about 250 feet ahead. Farnsworth gave two versions of Brooks' location and movements immediately prior to the time of the impact. He testified that he saw Brooks leave the dividing island and start eastward across the inner lane of the northbound part of the highway. In his statement to an officer the day after the accident Farnsworth said that Brooks was on the eastern edge of the highway, and that he saw him begin to walk westward across the outer lane. Farnsworth blew his horn and reduced his speed but did not attempt to stop. Brooks continued walking toward the center of the northbound highway and gave no indication that he was aware of the truck's approach. When some 150 feet away from Brooks, Farnsworth began to move the truck into the inner lane, and the impact occurred at a point on the white line separating the two lanes. The truck was then travelling 15 to 20 miles per hour. Farnsworth said he felt the wheels of the truck go over Brooks, but he did not stop to render aid or report the accident.

When apprehended by the police the following day, Farnsworth at first denied all knowledge of the accident but later admitted to the arresting officer that he had run over decedent. He said that he did not stop after the accident because he had 'had two beers' earlier in the day and was afraid that if he stopped and called the Highway Patrol the officers would smell the odor of alcohol on his breath and would 'crucity' him. He also told the officer that he failed to stop because he had seen animals that had been crushed by vehicles on the highway and he was certain he had killed Brooks and did not want to see the body.

An Army chaplain, who was one of the first persons to arrive at the scene after the accident, testified tht Brooks was lying in the inner lane of the northbound highway with one leg extending across the white line into the outer lane. He fixed Brooks' position at a point which was approximately 75 feet north of the place of impact. The chaplain gave Brooks conditional absolution and then went down the highway to call an ambulance. When he returned 15 or 20 minutes later several police officers and a few motorists had gathered at the scene of the accident, and he did not notice the location or condition of the body. On the witness stand he was shown a picture of Brooks taken at the scene of the accident by a photographer who accompanied the coroner, and he testified that the body, as whown by the picture, appeared to be more mutilated than it was when he found it. The chaplain was unable to say with certainty whether Brooks was dead or alive when he found him, but said, 'I have seen boys overseas mutilated far worse than he was and still alive * * *.'

The officers who arrived after the chapplain had left to call the ambulance testified that they found Brooks at a point some 195 feet north of the place where the initial impact had occurred. Brooks was dead. His body was badly mangled and eviscerated and lay entirely inside the inner lane.

An examination of the truck disclosed an imprint of cloth in the valley between the right front fender and the right side of the hood. Flecks of blood were found on the grillwork in front of the radiator, and the right front headlight was broken. There was evidence that the vehicle would stop in the 'turn of a wheel,' including 'reflex time,' if all its air brakes were applied when it was going about 15 miles per hour, and that it would stop within 15 to 20 feet if the brakes were applied at a speed of 35 miles per hour.

A coroner's chemical analysis of a specimen of decedent's blood indicated an alcoholic content of .22 of 1 per cent, and defendants produced two doctors who testified that in their opinion, based upon the coroner's finding, Brooks was 'under the influence of alcohol' at the time of the accident. On the other hand, attendants at the toll plaza of the Golden Gate Bridge who saw and talked to Brooks about an hour before the accident testified that he was sober at that time. And the chaplain, who knelt alongside Brooks and put his lips to his ear, did not notice any odor of alcohol.

The evidence is sufficient to support the judgment, and we turn now to defendants' claims of error.

Defendants attempted to impeach the testimony of the arresting officer by showing that on earlier occasions, when he discussed the accident with the district attorney and when he testified at a Naval inquiry and at a preliminary hearing on a criminal charge, the officer had not mentioned Farnsworth's statement that he had 'had two beers' and was afraid that the Highway Patrol would 'crucify' him if he stopped to report the accident. It is not disputed that Farnsworth had been drinking; he admitted on the stand that he had had 'three or four beers' on the afternoon before the accident. The court refused to permit the attempted impeachment, it appearing that on the earlier occasions the officer was not specifically questioned as to whether he had discussed drinking with Farnsworth and was not asked to state all of the reasons given by Farnsworth for his failure to stop. The ruling was proper. A witness may not be impeached by showing that he omitted to state a fact or stated it less fully at a prior proceeding unless his attention was called to the matter at that time and he was then asked to testify concerning the very facts embraced in the questions propounded at the trial. People v. Casanova, 54 Cal.App. 439, 446-447, 202 P. 45; Ball v. State, 43 Ariz. 556, 33 P.2d 601, 602; Larrance v. People, 222 Ill. 155, 78 N.E. 50, 51-52; Commonwealth v. Hawkins, 3 Gray. 463, 69 Mass. 463, 465; State v. Ogden, 39 Or. 195, 65 P. 449, 452-453.

The following instruction was given to the jury at plaintiffs' request: 'You are instructed that the operator of a motor vehicle is not necessarily exempt from liability * * * by showing simply that at the time of the accident he was running at a rate of speed allowed by law. He still remains bound to anticipate that he may meet persons at any point of the roadway and he must, in order to avoid a charge of negligence, keep a proper lookout for them and keep his vehicle under such control as will enable him to avoid a collision with another person using proper care and caution, and, if the situation requires, he must slow up and stop.' The language used in this instruction was taken almost verbatim from a statement of this court in passing on the propriety of a nonsuit in the case of Reaugh v. Cudahy Packing Co., 189 Cal. 335, 340, 208 P. 125. The statement formulates an absolute standard of conduct in that it provides that the operator of a motor vehicle must keep it under such control as will enable him to avoid a collision. The instruction should have been phrased in terms of a duty to use ordinary care. However, the jurors were elsewhere informed in a number of instructions that the only duty imposed upon Farnsworth was that of exercising the care of a person of ordinary purdence and caution, and under the facts of this case it does not appear that a miscarriage of justice resulted.

The jury was instructed that the conduct of Farnsworth in driving away from the scene of the accident might be considered as a circumstance showing consciousness of responsibility on his part for the accident and death of Brooks and that the weight to be given such circumstance was a matter for the jury to determine. The jury was further instructed that the fact that Farnsworth left the scene of the accident could not, in and of itself, be the basis of a verdict against defendants, and if Farnsworth was not guilty of negligence which caused the accident and death of Brooks, or if Brooks was guilty of negligence which contributed to his injury and death, the verdict must be for defendants, regardless of what Farnsworth did or failed to do after the accident. Defendants argue that an instruction on the inferences which may be drawn from flight is appropriate only in a criminal prosecution. See Pen.Code, § 1127c. We have found no case in this state where an instruction of this type has been given in a civil action, but it has been held in other jurisdictions in negligence cases that failure to stop and render aid is some evidence of a consciousness of responsibility for an accident See Kotler v. Lalley, 112 Conn. 86, 151 A. 433-434; Shaddy v. Daley, 58 Idaho 536, 76 P.2d 279, 281-282; Langenstein v. Reynaud, 13 La.App. 272, 127 So. 764, 766; Battle v. Kilcrease, 54 Ga.App. 808, ...