Butigan v. Yellow Cab Co.
Decision Date | 22 April 1957 |
Citation | 310 P.2d 132 |
Court | California Court of Appeals Court of Appeals |
Parties | George BUTIGAN and Bobbette Butigen, husband and wife, Plaintiffs and Appellants, v. YELLOW CAB COMPANY, a corporation, Jack E. Bland, Fred Wurm, et al., Defendants. Yellow Cab Company, a corporation, Jack E. Bland, Fred Wurm, Respondents.* Civ. 21989. |
Raoul D. Magana, Victor E. Kaplan and Monta W. Shirley, Los Angeles, for appellants.
H. T. Ellerby, Henry F. Walker, Los Angeles, for respondent Wurm.
Kenneth J. Murphy, Henry E. Kappler, Los Angeles, for respondent Yellow Cab Co. SHINN, Presiding Justice.
This is a simple case of a collision in a business district between a taxicab of Yellow Cab Company in which plaintiff Bobbette Butigan was riding as a passenger and a passenger car being operated by Fred Wurm. On motion of George Butigan the action was dismissed as to him. Verdict and judgment were against Bobbette (to be referred to as plaintiff and appellant) and after denial of her motion for new trial, she appeals from the judgment.
The sole ground of the appeal is claimed error in instructions given. The court read 81 instructions, 30 requested by plaintiff, 39 requested by defendants and 12 requested by plaintiff and defendants. In issue were questions of negligence of either of the drivers, proximate cause and damages. The cab company had the duty to exercise the highest degree of care; Wurm was required to exercise only ordinary care.
The essential facts are the following. Bobbette, who resided on the east side of Silverlake Boulevard, called a cab, which appeared and parked at the curb headed north; she entered the cab, which proceeded north toward the intersection of Silverlake and Effie Streets, where there were traffic signals. Jack Bland, driver of the cab, decided to turn around on Silverlake Boulevard. He testified that he was intending to turn around by going into a driveway on the west side of the street, backing out and turning south, but that when the cab was part way across the center of the street his motor stopped; he endeavored for some one and a half to three seconds to start it but was unsuccessful; he saw no traffic approaching from the north. Wurm coming south ran into the righthand side of the cab and Bobbette was injured. Bland testified that he had had the cab in the shop on the previous day because the motor had been stalling due to the fact that it was running on a thin mixture to save gas. Wurm testified that as he came south the Cab pulled out in front of him and that he had no chance to turn or stop before running into it.
The first point made by plaintiff is that the court erred in giving an instruction on 'unavoidable or inevitable accident.' 1 The giving of this instruction was error for two reasons, first, because it effectively stated that the cab company had only a duty of ordinary care and, second, because the evidence did not warrant an instruction on unavoidable accident.
The jury was instructed that the cab company was required to exercise the highest degree of care. The criticized instruction told the jury in effect that if the defendants exercised ordinary care the accident would be considered unavoidable even though it could have been avoided 'by the exercise of exceptional foresight, skill or caution,' and further that the accident was not unavoidable if any defendant failed to exercise ordinary care. The practical effect of this instruction was to inform the jury that the accident could be found to have been unavoidable if the cab company exercised ordinary care. Although the duty of the cab company was properly defined in another instruction, it will appear from our further discussion that the jury, in all probability, followed the erroneous instruction. See Finley v. City & County of San Francisco, 115 Cal.App.2d 116, 251 P.2d 687. Defendants do not deny that it was error to give it but they say that some of the other instructions requested by plaintiff were susceptible of a construction that the cab company had only a duty to use ordinary care and that, therefore, plaintiff may not complain of error in the defendants' instruction. Different degrees of care were demanded of the defendants and it was necessary that that distinction be observed throughout the instructions. In order to accomplish this, special instructions should have been prepared by counsel. It could not be accomplished by taking at random standard instructions on negligence from a book which, though applicable to Wurm, were inapplicable to the cab company. Our attention is called to several instructions given at the request of plaintiff which it is said stated the duty of the cab company to be substantially the same as that stated in the erroneous instruction on unavoidable accident. Defendants argue that if the statements were of the same tenor plaintiff cannot complain of the error. At the request of plaintiff and defendant Wurm the court defined negligence as the failure to exercise ordinary care, and in another instruction requested by plaintiff and defendant Wurm the jury was informed that negligence was one of the issue in the case. Although the court instructed at plaintiff's request that the cab company was required to use the utmost care and diligence, the abstract instructions on negligence did not state that those instructions applied only to the conduct of Wurm. The instructions, of course, should have made it clear that the duty of ordinary care was applicable only to him, and that the rule of utmost care was applicable to the cab company. This would have required more effort on the part of the plaintiff than was involved in pursuing the easy method of taking abstract instructions from a form book. Certainly plaintiff's instructions on ordinary care were not intended to relieve the cab company of any part of its duty. Notwithstanding the lack of clarity in the instructions, we are far from convinced that, when considered as a whole, they would have been understood by the jury as placing the two defendants under the same duty. We are of the opinion that plaintiff is not precluded from asserting error in the giving of the instruction on unavoidable accident. We are further of the opinion that the error was prejudicial.
The next question is whether, regardless of the form of the instruction, it was error to give it. The contentions of the parties have led us to an inquiry into the case law in California upon the subject of unavoidable accident with respect to both the meaning of the doctrine of unavoidability and also to the matter of instructions upon that phase of nonliability.
As generally understood, the term 'unavoidable accident' denotes a cause of an accident consisting of some conduct, condition or occurrence operating independently of the conduct of the parties and which would not have been foreseen in the exercise of ordinary care. The question is whether California follows this rule or another one, namely, that the so-called rule of 'unavoidable accident' is applicable to every case of an accident where the question of negligence is one of fact, even in cases where there is no evidence of a proximate cause, unforeseeable and uncontrollable by the parties. If the latter rule is the correct one, instructions on unavoidable accident are properly given even in accident cases where the question of negligence must be determined solely from the conduct of the parties. It is a serious question.
Absence of negligence and unavoidability are one and the same thing. Prosser (Second Edition, p. 167) says that an unavoidable accident is one caused by some event or happening that was not reasonably to be anticipated. It is a universal rule. 65 C.J.S., Negligence, § 244, p. 1096. The question of negligence encompasses all the causes of an accident, the acts of the parties and also those causes which operate independently of the acts of the party or parties charged with negligence. To litigants who seek to prove negligence and are confronted with the claim of unavoidability of the accident, the term 'unavoidable accident' has a limited connotation; it has relation to those causes which are distinct from and operate indepently of the actions of the parties, but it has no relevancy where the question of negligence must be decided on the basis of their actions alone, and, although in the absence of evidence of negligence, the accident is unavoidable in the sense that it occurred without fault of the party charged, that is not the unavoidability that justifies special instructions. In practice the rule of unavoidability is regarded as a special theory or rule of nonliability. If this were not so the label 'unavoidable' or 'inevitable' would not have been given to the type of accidents that comprise the 'unavoidable accident' category.
With the exception of some cases of comparatively recent origin to be hereafter discussed, there will not be found in the reported cases any departure from the rule that unavoidability is a false quantity unless there has entered into the case evidence of some cause, operating independently of the conduct of the parties, and which would not have been foreseen in the exercise of ordinary care. We refer to a few cases that are typical of the entire class. Graham v. Consolidated Motor Transport Co., 112 Cal.App. 648, 297 P. 617 ( ); Creamer v. Cerrato, 1 Cal.App.2d 441, 36 P.2d 1094 (same); Jolley v. Clemens, 28 Cal.App.2d 55, 82 P.2d 51 ( ); Zaferis v. Bradley, 28 Cal.App.2d 188, 82 P.2d 70 ( ); Smith v. Harger, 84 Cal.App.2d 361, 191 P.2d 25 ( ); Merry v. Knudsen Creamery Co., 94 Cal.App.2d 715, 211 P.2d 905 (brake failure); La Porte v. Houston, 33 Cal.2d 167, 199 P.2d 665; Barber v. Gordon, 111 Cal.App. 279, 295 P. 377; Doggett v. Lacey, 121...
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