Carlton v. Pacific Coast Gasoline Co.

• Court: California Court of Appeals
• Writing for the Court: VICKERS; WOOD, Acting P. J., and VALLEE
• Citation: Carlton v. Pacific Coast Gasoline Co., 110 Cal.App.2d 177, 242 P.2d 391 (Cal. App. 1952)
• Decision Date: 31 March 1952
• Parties: CARLTON v. PACIFIC COAST GASOLINE CO. et al. Civ. 18655.

Page 391

242 P.2d 391

110 Cal.App.2d 177

CARLTON v. PACIFIC COAST GASOLINE CO. et al.

Civ. 18655.

District Court of Appeal, Second District, Division 3, California.

March 31, 1952.

C. Ransom Samuelson, Long Beach, for appellant.

Parker, Stanbury, Reese & McGee, Los Angeles, for respondent Wm. A. Kirk, Jr.

R. M. Crookshank, Santa Ana, for respondent Ernest H. Gisler.

VICKERS, Justice pro tem.

Appeal by plaintiff from a judgment of nonsuit.

Plaintiff filed this action to recover damages for the wrongful death of her husband. On October 27, 1948, about 11 a. m., he was driving a truck and trailer loaded with oil well pipe. The vehicle left the road opposite a point where the defendant Kirk had parked his car, entered a plowed field and came to a sudden stop, with the result that the pipe shifted forward into the cab of the truck and killed the decedent. Originally there were five defendants in the action but the only ones with which we are concerned in this appeal are the defendant Kirk, the driver of an automobile that was parked so as to occupy a portion of the road, and the defendant Gisler, the lessee of the plowed field.

This being an appeal from a judgment of nonsuit we must apply the following legal principles: "The motion for nonsuit admits the truth of plaintiff's evidence, and every inference of fact that can be legitimately drawn therefrom, and * * * the evidence should be interpreted most strongly against the defendant." Hoff v. Los Angeles Pacific Co., 158 Cal. 596, 599, 112 P. 53, 54. 'The trial and appellate courts must indulge in every inference or presumption fairly arising from the evidence in favor of plaintiff.' Slater v. Shell Oil Company, 39 Cal.App.2d 535, 539, 103 P.2d 1043, 1046.

It will therefore be necessary for us to examine the evidence in considerable detail. It will also be necessary to differentiate between the evidence received from the plaintiff's witnesses and that elicited from certain of the defendants when called by plaintiff in pursuance to Code of Civil Procedure, section 2055. Insofar as the latter evidence is concerned the plaintiff may rely on so much of it as is favorable to her and disregard the unfavorable portions, see Green v. Uarte, 87 Cal.App.2d 75, 77, 196 P.2d 63.

The scene of the accident was Atlanta Street between Cannery and Buchard Streets in Orange County. Atlanta Street is a country road which had an oil pavement 16 feet in width and dirt shoulders on each side of varying widths. The county had a 60 foot easement for road purposes but had only made use of a portion thereof. Atlanta Street runs east and west and for a mile or more in each direction was level, and from the photographic exhibits offered by plaintiff appears to have been fairly smooth. The land on each side of Atlanta Street was flat and open and for many years had been used for agricultural purposes by the defendant Gisler, under a long term lease. He testified, when called by plaintiff as a witness under Code of Civil Procedure, section 2055, that he had plowed it to within 3 feet of the paved portion of the road. The weather was clear and dry.

Decedent approached from the west, alone, driving the truck and trailer in question This vehicle was 8 feet wide and approximately 54 feet long. It weighed approximately 13 tons and was loaded with approximately 21 tons of oil pipe secured to it by chains. Under the physical conditions present the maximum speed of the vehicle was 40 miles per hour. Decedent was bringing the pipe from a point several miles distant. The pipe was to be delivered by decedent to an oil well located about one-quarter of a mile southeasterly from the point where the defendant Kirk and another defendant, Cox, were parked. The approach to this well was from Atlanta Street and by means of a dirt road. Plaintiff's expert witness Jagger testified that normally it would require 350 feet to 400 feet to slow down the vehicle so loaded from 40 miles per hour in order to make a right-hand turn and that it would have to practically come to a stop in order to make the turn in question into the well. Plaintiff's witness Hughes was working on the derrick floor of the well in question and was looking for the decedent. He testified that he could not tell whether the cars of defendants Kirk and Cox were parked on or off the roadway or what the speed of the truck and trailer was as it passed those cars; that the truck appeared to go off the north side of the road opposite to or a little east of the defendants' cars; that he had been watching the truck for a half minute before the crash. He further testified the sandy dirt came 'right up to the edge' of the pavement.

Plaintiff called as one of her witnesses Norman Heffner, a state highway patrolman. He identified the photographic exhibits offered by plaintiff as truly depicting the scene as it appeared upon his arrival shortly after the accident. From these exhibits it appears that the rear of the truck was supported by four wheels having two tires on each, which extended almost to the edges of the bed of the truck and that the front of the truck was supported by two single wheels which had a somewhat narrower tread. It also appears from these exhibits that the trailer was supported by six wheels of two tires each, which extended almost to the edges of the trailer. Two of these wheels were under the front and four of them under the rear of the trailer. As shown by these photographs the vehicle came to rest in the following position: The trailer was inclined slightly to the north with its right wheels on the pavement and its left wheels just off the dirt shoulder with the tires partly buried in loose earth; the truck was inclined further to the north with one of its right rear wheels on the shoulder and the other in the soft ground; the left wheels of the truck were in the plowed field; the front wheels of the truck were almost completely buried in the plowed field, the dirt of which had been piled up by the front of the truck so that it extended partly over the bumper; the right front wheel was approximately 10 feet from the pavement.

Officer Heffner testified as follows: That the paved portion of the road was 16 feet wide and the northerly shoulder was of packed dirt and was 3 feet wide; that the southerly shoulder was in better condition and was 6 feet wide; that the field was plowed up to these shoulders; that the front end of the truck was 10 feet from the pavement; that the left rear tires were just off the pavement on the shoulder and that the marks of the tread of these tires could be seen just off the pavement and on the dirt shoulder, running from a point 66 feet to the west to the left rear tires; the witness then identified these tread marks on plaintiff's photographic exhibit 1 and indicated them by drawing a red line thereon. The officer also testified he looked for but found no skid marks and was unable to find any eye witnesses.

The defendants Kirk and Cox were called by the plaintiff to testify under Code of Civil Procedure, section 2055. They testified that Kirk parked his passenger automobile on the south side of Atlanta facing west, with the left wheels resting on the shoulder and the right side of the car extending from 3 feet to 5 feet onto the pavement; that Kirk then engaged in conversation with Cox who had parked his car further to the south of and along the side of Kirk's car; that Cox's car was close to that of the defendant Kirk and was facing east; that from that time until the accident there was no other traffic on the road except a Dodge car that passed in a westerly direction shortly after the defendants' cars came to rest; that decedent's vehicle only moved over about 2 feet to the north to pass Kirk's car and was 2 or 3 feet away from it while passing; that it was travelling 45 miles per hour and came to rest 80 feet (per Cox) and 200 feet (per Kirk) from defendants' cars. From the photographic exhibits it is impossible to tell with certainty how wide the north shoulder of the road was for the last 15 feet before the truck turned into the plowed field. It is also impossible to tell how hard that part of the shoulder was or whether its surface was smooth or rough. If the case had been submitted to the jury a conclusion by it that that portion of the shoulder was less than 2 feet wide, was...