Brown v. Connolly

• Decision Date: 08 August 1962
• Citation: 206 Cal.App.2d 582,24 Cal.Rptr. 57
• Parties: William A. BROWN, Jr., et al., Plaintiffs and Appellants, v. Gregory Peter CONNOLLY et al., Defendants and Respondents. Civ. 25600.
• Court: California Court of Appeals Court of Appeals

Page 57

24 Cal.Rptr. 57

206 Cal.App.2d 582

William A. BROWN, Jr., et al., Plaintiffs and Appellants, v. Gregory Peter CONNOLLY et al., Defendants and Respondents.

Civ. 25600.

District Court of Appeal, Second District, Division 2, California.

Aug. 8, 1962.

Beilenson, Meyer, Rosenfeld & Susman, Beverly Hills, for appellants.

Hunter & Liljestrom and Richard M. Gilliland and Henry E. Kappler, Los Angeles, for respondents.

FOX, Presiding Justice.

This is an appeal by plaintiffs, Victor Brown, a minor, and his parents, William A. Brown, Jr. and Enolla Brown, from an adverse judgment in a personal injury action arising out of a collision between a station wagon driven by defendant Gregory Peter Connolly and a bicycle ridden by plaintiff Victor Brown.

The accident occurred on Wednesday, May 22, 1957, at approximately 4:20 p. m. on a T-type intersection formed by the termination of Crescent Street where it joins Bridewell Avenue in the County of Los Angeles. Crescent Street and Bridewell Avenue run through a residential area which is situated in a little valley of 'six blocks east and west and about three blocks north and south.' Defendant Connolly was driving a 1957 Chevrolet station wagon in a westerly direction on Bridewell Avenue and Victor was riding his bicycle in a southerly direction on Crescent Street. At the time of the accident, the intersection involved was not controlled by traffic signals or traffic signs of any kind and neither the streets nor the intersection bore any white lines or other markings. Bridewell Avenue was, however, posted as a 25 mile per hour zone approximately two streets east of the intersection.

Defendant testified that when he first saw the boy his vehicle was 45 to 55 feet east of the east curb line of Crescent. At that time, Victor ¹ was approximately 20 to 30 feet from the north curb of Bridewell riding his bicycle in a southerly direction. At the time Connolly first saw the boy, there were three or four other boys behind Victor, none of whom were called as witnesses. Victor 'was bicycling towards the fence along the freeway' and was 'clipping this corner of Crescent and Bridewell as tight as he could * * *.' The other boys that were with him turned in and Victor tried to swerve his bicycle. From the time that the defendant first saw the boy until the moment of impact, defendant continued to watch Victor, during all of which time the bicycle continued to move. It was Connolly's belief that the boy attempted to change the direction of his bicycle to parallel the car. Defendant estimated that the speed of his vehicle was 20 to 30 miles per hour. ² As soon as Connolly saw the boy, he slammed on his brakes and the car, while decelerating, struck the boy. The point of impact was somewhere between four and six feet north of the center of Bridewell. The collision knocked Victor and his bicycle down and Victor was rushed to the hospital by ambulance. The bicycle was completely destroyed. Victor suffered serious injuries.

Plaintiff Enolla Brown was appointed guardian ad litem for plaintiff Victor, a minor. The complaint alleged in the first cause of action that Victor sustained permanent injuries as a result of defendant Connolly's negligence in operating an automobile owned by defendant Roddy Transportation Company West Coast, a copartnership, consisting of defendants Edward Colliau and William Lucian Blythe. Defendant Connolly was acting in the course and scope of his employment by Carl Johnston, doing business as the Star Liquor Store. The relationship of the parties was admitted. The second cause of action alleged that Victor's parents William A. Brown, Jr. and Enolla Brown, had incurred and would continue to incur expenses for medical care of Victor; that William A. Brown, Jr. had sustained loss of earnings occasioned by Victor's injuries; and that Enolla Brown had administered nursing care to Victor. Victor sought to recover the sum of $200,000.00 and his parents sought to recover the sum of $32,275.00.

A jury trial results in a verdict and a judgment for all defendants. Plaintiffs' motion for a new trial was denied. They have appealed from the judgment.

Only one of plaintiffs' assignments of error need be discussed. It relates to the court's instructions re standard of care applicable to a child. The court instructed:

'A child is not held to the same standard of conduct as an adult and is only required to exercise that degree of care which ordinarily is exercised by children of like age, mental capacity and experience. There is no precise age at which, as a matter of law, a child comes to be held accountable for his actions by the same standard as applies to an adult. It is for you to determine the mental capacity and experience of VICTOR BROWN and whether his conduct was or was not such as might reasonably have been expected from a child of like age, capacity and experience, under the same or similar circumstances.

'The rule just stated applies even when a child is charged with having violated a statute or the evidence shows such a violation. The question whether or not the child was negligent still must be answered by the standard applicable to children as I have just stated it to you.'

The court then instructed on certain sections of the Vehicle Code which were applicable to the case. The first section was 525 (now 21650) of the Vehicle Code which provides that upon all roadways of sufficient width a vehicle shall be driven on the right hand of the roadway 'with exceptions not applicable to this case.' The second section was 540 (now 22100) of the Vehicle Code which deals with turns at intersections and the third section was 452 (now 21050) of the Vehicle Code, in respect to which the court stated, 'Every person riding a bicycle upon a highway shall be granted all the rights and shall be subject to all the duties applicable to the driver of a vehicle as herein before stated.' It appears quite clear in light of the facts in the record, especially in view of the latter instruction (based on Veh.Code § 452), that these three instructions based upon the Vehicle Code had application only to the minor plaintiff. The court then, on its own motion, gave the following instruction on negligence per se: ³

'If a party to this action violated any of the sections of the Vehicle Code just read to you, a presumption arises that he was negligent. This presumption is not conclusive. It may be overcome by other evidence showing that under all the circumstances surrounding the event, the conduct in question was excusable or justifiable.

'To prove that a violation of a section of the Vehicle Code such as that charged in this case was excusable or justifiable so as to overcome the presumption of negligence, the evidence must support a finding that the person who violated the code section did what might reasonable (sic) be expected of a person of ordinary prudence who desired to comply with the law, acting under similar circumstances.'

The cases of Cummings v. County of Los Angeles, 56 Cal.2d 258, 14 Cal.Rptr. 668, 363 P.2d 900, and Daun v. Truax, 56 Cal.2d 647, 16 Cal.Rptr. 351, 365 P.2d 407 are here controlling. In the Daun case, the court said at pages 654-655, 16 Cal.Rptr. at p. 355, 365 P.2d at p. 411: 'In the Cummings case, supra ([ante] 56 Cal.2d at p. 263, 14 Cal.2d at p. 671, 363 P.2d at p. 903), this court had the following to say about substantially similar instructions: 'Standing alone, the [per se] instruction is clearly erroneous. Its vice is that it states that a breach of the statute creates a presumption of negligence that can only be overcome by the violator, whether he be child or adult, by doing 'what might reasonably be expected of a person of ordinary prudence who desired to comply with the law, acting under similar circumstances.' In other words, the instruction directly and unequivocally imposes the same standard of care on the child as it imposes on the adult. Thus, of course, is not the law. Children are judged by a special subjective standard and not by the objective standard set forth in the instruction. They are only required to exercise that degree of care expected of children of like age, experience and intelligence. The presumption of negligence or negligence per se instruction here challenged, takes that protection away from the child. The per se negligence instruction, taken alone, when applied to children, is totally inconsistent with the body of law that has grown up to protect children. The per se negligence instruction is predicated on the theory that the Legislature has adopted a...