Campbell v. City of Palm Springs

• Decision Date: 03 July 1963
• Citation: 218 Cal.App.2d 12,32 Cal.Rptr. 164
• Parties: Amelia C. CAMPBELL, Helen Campbell, Bettle Cobb and George M. Campbell, Plaintiffs, Respondents and Appellants, v. CITY OF PALM SPRINGS, a municipal corporation, Defendant and Appellant, Aubrey Clark, individually and doing business as Clark Brothers, Homer L. Clark, individually and doing business as Clark Brothers, Clark Brothers, a co-partnership, Defendants and Respondents. Civ. 7089.
• Court: California Court of Appeals Court of Appeals

Page 164

32 Cal.Rptr. 164

218 Cal.App.2d 12

Amelia C. CAMPBELL, Helen Campbell, Bettle Cobb and George M. Campbell, Plaintiffs, Respondents and Appellants, v. CITY OF PALM SPRINGS, a municipal corporation, Defendant and Appellant, Aubrey Clark, individually and doing business as Clark Brothers, Homer L. Clark, individually and doing business as Clark Brothers, Clark Brothers, a co-partnership, Defendants and Respondents.

Civ. 7089.

District Court of Appeal, Fourth District, California.

July 3, 1963.

Rehearing Denied July 22, 1963.

Hearing Denied Aug. 28, 1963.

Thompson & Colegate, Palm Springs, and Robert E. Dauber, Riverside, for defendant-appellant City of Palm Springs.

Hews, Hews & Brown and John H. Hews, Riverside, for defendants and respondents Clark and Clark Brothers, a co-partnership.

Alvan H. Fisher, Banning, and David M. McGahey, Palm Springs, for plaintiffs, respondents and appellants Amelia C. Campbell, Helen Campbell, Bettie Cobb and George M. Campbell.

GRIFFIN, Presiding Justice.

Plaintiffs, respondents and appellants, Amelia C. Campbell, Helen Campbell, Bettie Cobb and George M. Campbell, brought this action for damages against defendant and appellant City of Palm Springs, a municipal corporation, and defendants and respondents Aubrey Clark, individually and doing business as Clark Brothers, Homer L. Clark, individually and doing business as Clark Brothers, Clark Brothers, a co-partnership, and defendant Thomas P. Ward, as a result of an automobile accident which occurred May 5, 1955, on Ramon Road, a public street, about 31 feet wide, in the City of Palm Springs.

According to the evidence, consisting of about 2,000 pages of reporter's transcript, plaintiffs were traveling easterly on Ramon Road in a Pontiac car about 7:15 p. m. It was daylight. Amelia C. Campbell was driving. Defendant Ward was driving westerly on the same road at about 75 to 80 miles per hour in a 1947 Cadillac. To the north of this highway was a city dump and other property including housing units belonging to defendant City and under lease to defendants Clark. There was a row of tamarisk trees on the north side of the roadway, about 700 feet long. There was a dirt road leading up from the dump on an angle and running northeasterly from Ramon Road at a 90 degree angle with another row of tamarisk trees extended in that direction. The access road was rough and contained ruts and bumps. A stop sign was erected by the City near the edge of Ramon Road for the traffic coming from the northeast on the access road. On this occasion defendant Douglas McGarrity was driving a Chevrolet car owned by Sarah Clark up said dump road.

The complaint alleged that McGarrity was driving the Chevrolet with the consent of Sarah Clark, and that McGarrity had no operator's license. In the pre-trial order, it was agreed that McGarrity drove the defendant Sarah Clark's car and that plaintiffs seek to recover against defendant's McGarrity, Sarah Clark, Aubrey Clark, Homer Clark and Clark Brothers, on the basis that they and each of them were negligent, i. e., that McGarrity was negligent; that Sarah Clark was liable because she allowed McGarrity to drive her car with her permission; that Sarah was the manager and operator for Clark Brothers and that McGarrity was a servant and employee of Clark Brothers and was acting within the scope of his employment at the time of the accident; that Sarah Clark's car was being used by defendant McGarrity for Clark Brothers business; and that all defendants were liable because they let McGarrity drive when they knew that he was not a safe driver and had no operator's license.

It appears that just before McGarrity came onto the highways traveling west, he made a stop, and after starting again he looked east on Ramon Road and saw a black car coming a considerable distance away; that he proceeded with one or two left wheels on the paved portion of Ramon Road and watched the Ward car approaching and suddenly it swerved to his left across the highway and ran into plaintiffs' car. Apparently Ward's car was not damaged and he continued on and was not found until several days later when he gave his version of the accident.

Testimony from a deposition of Ward shows that he had had a few drinks and was traveling westerly in his Cadillac; that there was a row of trees along there and he knew there was a dirt road leading to and from the dump and he also knew of the boulevard stop; that when he was about one hundred to two hundred feet from it, he observed a vehicle on it and no part of the vehicle was hidden from his view by virtue of the trees; that when he saw the car come out of the dump road, he immediately applied his brakes; that he saw no traffic coming from the west on Ramon Road, but he then suddenly saw plaintiffs' car and turned to his left and collided with the eastbound car. The officers believed from what they saw that Ward was intoxicated.

The action against the City, as per the complaint and pre-trial order, was predicated upon the theory that the City's conduct of a proprietary operation, such as maintenance of a city dump and rental of units, was negligently maintained, in that the condition of the road and the maintenance of the tamarisk trees resulted in an obstruction to clear vision on that road and was a causation of the accident which followed; that such condition was maintained in a proprietary capacity and was a nuisance on the part of the City; that the City was negligent in failing to make said access road intersection approach Ramon Road at right angels; that as they are, the tamarisk trees on the north side of the road effectively hide cars on the intersecting road from drivers approaching from the east and as a result the City knew and had notice of such blind intersection, and that it was a hazard, and that no signs were posted notifying the traveling public of such hazard. Accordingly, it is argued that such negligence was a proximate cause of this accident.

The court found generally in favor of plaintiffs on this claim; and found that the City had knowledge and notice of the dangerous and defective conditions for many months prior to the accident and failed to remedy same or to take action reasonably necessary to protect the public against same, and rendered judgment against the City of Palm Springs.

The trial court found as untrue the answer of the Clarks in paragraph VIII alleging that McGarrity and Sarah Clark were not, at the time, the agents of the defendants Clark or employed by them. Nowhere does the trial court specifically find that defendants Sarah Clark or McGarrity were guilty of any negligence which would be a proximate cause of plaintiffs' injuries. The same may be said as to defendants Clark and their co-partnership.

As an explanation of the finding made as to the defendants McGarrity and Sarah Clark being agents of the Clarks and acting within the scope of their employment, it is pointed out that during the second day of trial it was announced that McGarrity and Sarah Clark had withdrawn from the case by reason of a covenant not to sue and no judgment was entered as to them. Apparently, their claimed principals remained in the case and escaped liability. The judge expressed in his oral decision that McGarrity's conduct met the standards of due care and accordingly his actions did not constitute negligence, and hence there was no liability of his principals. After rendering judgment against Ward and the City of Palm Springs, the findings recite: 'That plaintiffs are not entitled to judgment against the other defendants.' Judgment was entered accordingly. On plaintiffs' appeal from this portion of the judgment refusing to allow judgment against the remaining defendants, plaintiffs' only argument is that the evidence shows, as a matter of law, that McGarrity was negligent and that his negligence was a proximate cause of the injuries sustained by them. They claim that the evidence is not in conflict; that McGarrity pulled out in front of Ward on the highway without stopping; and that the vision was obstructed.

We see no merit to the claim. The evidence was in conflict as to whether McGarrity stopped at the stop sign. According to Ward's testimony, he was not expecting a car to come from that road, but he did say that he saw a car moving all the time and at the time of applying his brakes he did not observe any decelleration of it. The record indicates that he was evasive in reference to the failure of McGarrity to make a stop and it shows he did not know as a fact whether the other vehicle stopped or not. On the other hand, although McGarrity did not appear personally to testify at the trial, plaintiffs offered into evidence his version of the accident through his statement to the police officer. According to this statement, which was received in evidence without objection, McGarrity said that he came to a stop near the paved portion of the roadway and that he observed a car coming at a considerable distance to the east; that he proceeded with one wheel or the two left wheels on the pavement portion of the roadway up a rise which crests about 150 yards; that he watched this car approaching from the east to be sure that it didn't strike his car; that he observed another car in the rear view mirror, moving in the opposite direction, collide head-on with the car coming from the east, when the car coming from the east swerved across the roadway and off of his side of the road. He further told the officers that he did not believe that his car constituted a hazard or any obstacle to the car which was later identified as the Ward car, which swerved to the opposite side of the two-lane roadway at that point. In his deposition, found in the record on appeal, McGarrity testified that he 'stopped at the stop sign, moved up slowly to the pavement (about 10 to 14 feet)'; his 'left wheel was going on to pavement,' in a westerly direction and he looked back and saw the...