Casas v. Maulhardt Buick, Inc.

• Decision Date: 07 February 1968
• Citation: 258 Cal.App.2d 692,66 Cal.Rptr. 44
• Court: California Court of Appeals Court of Appeals
• Parties: Michael CASAS et al., Plaintiffs and Appellants, v. MAULHARDT BUICK, INC., etc., et al., Defendants and Respondents. Civ. 30489.

Page 44

66 Cal.Rptr. 44

258 Cal.App.2d 692

Michael CASAS et al., Plaintiffs and Appellants, v. MAULHARDT BUICK, INC., etc., et al., Defendants and Respondents.

Civ. 30489.

Court of Appeal, Second District, Division 5, California.

Feb. 7, 1968.

Rehearing Denied March 6, 1968.

Heily & Blase and Bruce H. White, Oxnard, for plaintiffs and appellants.

Barnes, Benton, Orr, Duval & Buckingham and Edwin Duval, Ventura, for defendants and respondents.

HUFSTEDLER, Associate Justice.

Plaintiffs, Michael Casas, a minor, and his father, Stanley Casas, appeal from a judgment in favor of defendants, Oscar Rodriguez and Maulhardt Buick, Inc. ('Maulhardt'), entered after a jury verdict for the defendants. Michael, through his guardian ad litem, sought damages for personal injuries he sustained when he was run over by a car driven by Rodriguez, an employee of Maulhardt acting within the scope of his employment. Michael's father joined the action to recover medical expenses he had incurred on Michael's behalf. ¹

The case has been tried twice. The first trial resulted in a defense verdict, and the trial court granted plaintiffs' motion for a new trial on the ground of the insufficiency of the evidence to sustain the verdict. The case was retried, and a second defense verdict was rendered. Plaintiffs moved unsuccessfully for a new trial, and this appeal followed. ² On appeal plaintiffs claim that the court prejudicially erred in giving certain instructions to the jury affecting liability.

Summary of the Evidence

On March 15, 1962, at about 4:30 p.m., four-year-old Michael was struck by an automobile driven by Maulhardt's employee, Rodriquez, as Michael was attempting to cross McKinley Street in the City of Oxnard. Michael sustained severe and permanent injuries.

Rodriguez gave the following version of the accident: He testified that he never saw Michael until after the accident when he removed the child from under the middle of his car. The first time Rodriguez knew that there was a collision was when he heard a bump on the front of his car. He thought he had hit a dog or a cat until a woman (Mrs. Munoz), seeing Michael under the car, screamed, 'You killed the boy.' He applied the brakes immediately following the collision, and the automobile stopped somewhere between 20 to 50 feet thereafter. Rodriguez entered McKinley Street from Third Street. Just before the accident he was driving northerly towards First Street at a speed of between 15 to 20 miles per hour. He saw no traffic and no children. Rodriguez was familiar with McKinley, and he knew that children played on McKinley Street between Second and First. He also knew that there was a likelihood that some child might run out in front of him as he was driving along McKinley.

On the afternoon of the accident Michael's mother left him, his eight-year-old brother, Stanley, Jr., and his sister, Grace, with Michael's maternal grandmother, who lived on the easterly side of McKinley. McKinley is a residential street flanked by modest homes, some of them with fenced yards and others without fencing. Michael's grandmother's yard was not fenced. Across McKinley from Michael's grandmother's home was the Munoz residence. Michael and his brother had been playing with the Munoz children in the Munoz yard shortly before the accident. While Grace, who was almost 14, was in her grandmother's kitchen, Michael came in to get a carrot. He took the carrot and was eating it as he went out of the house. Between two and four minutes after Michael left the house Grace heard Michael scream. Grace went outside and saw Michael lying on the sidewalk, her grandmother was fainting, and 'there were people all over the place.'

No one saw Rodriguez's car hit Michael although Mrs. Munoz came into her yard in time to see Michael being rolled under Rodriguez's car before it stopped. The physical evidence observed by an investigating police officer showed that Rodriguez's car was stopped 26 feet south of the south edge of First Street and 10 feet west of the east curb line of McKinley. A carrot was caught in the grille in the front of Rodriguez's automobile. Blood, skin, hair and pieces of carrot were found approximately 13 feet to the rear of the stopped automobile in an area about 12 to 15 feet from the easterly curb of McKinley and about 70 feet from its intersection with First Street. There was blood on the inner side of one of the wheels on the left side of the vehicle. No damage was observed to the vehicle itself. The investigating officer was of the opinion that the point of impact on the street was marked by the pieces of hair, skin and carrot. There was other opinion evidence that was in some respects contradictory concerning the point of impact.

The day of the accident was dry and clear. The evidence was conflicting upon the question whether there were any automobiles parked along the easterly curb of McKinley which might have interfered with Rodriguez's unobstructed view of that side of the street as he drove up McKinley. After the accident two automobiles were observed parked along the curb of McKinley some distance south of the area of impact fixed by the investigating officer. The distance from the left fender of the northernmost parked automobile to the point of impact was somewhere between 49 and 60 feet.

Michael did not testify at the first trial. Michael, who was seven years old at the time the case was retried, testified on retrial that he remembered 'walking on his knees' across the street, holding a corrot in his right hand. He remembered nothing else about the accident.

Error in Negligence Instructions

There was one critical issue in the plaintiffs' case as it was presented: Was Rodriguez negligent in failing to maintain a proper lookout, knowing that children played on McKinley between Second and First? Rodriguez testified that he never saw the child until after the collision. If the jury believed Rodriguez's testimony on that point, it had to decide why he did not see the child. Was it because Rodriguez was not maintaining the proper vigilance? Or was it because, under the circumstances. Michael was not visible to one exercising due care?

Rodriguez's testimony about where and how he was looking as he drove on McKinley was such that the jury might have disbelieved it altogether or, perhaps credited any one of the several versions he told. Rodriguez testified variously that: he was looking straight ahead, he was looking to his left and right, he was not looking for parked cars, he saw no cars parked, and he did not remember where he was looking. Rodriguez testified that he knew children played on McKinley, and he also knew that it was likely that a child might run out in front of him. He was obliged to exercise ordinary care under the circumstances to discover the presence of children who he knew could be in the street (Grant v. Mueller (1958) 160 Cal.App.2d 804, 807, 325 P.2d 680) and he must exercise greater care for the safety of the children than he would for adults. (E.g., Harris v. Union Ice Products (1959) 176 Cal.App.2d 132, 136, 1 Cal.Rptr. 287; Frederiksen v. Costner (1950) 99 Cal.App.2d 453, 456, 221 P.2d 1008; Conroy v. Perez (1964) 64 Cal.App.2d 217, 224, 148 P.2d 680.)

The trial court gave the jury general instructions on negligence, including BAJI Nos. 101, 101--B, 101--C, 102, 102--A, 148 and 151. The plaintiffs contend that the court erred in refusing two instructions they requested: (1) BAJI No. 140 (looking and not seeing) and (2) an instruction drawn by the plaintiffs, stating, 'One who does not see that which is clearly visible and should have been seen by one exercising ordinary care, as a result of which a collision occurs, is guilty of negligence as a matter of law.'

BAJI No. 140 ³ has been approved where the instruction has been requested by both parties (Daun v. Truax (1961) 56 Cal.2d 647, 651, 16 Cal.Rptr. 351, 365 P.2d 407) and criticized as argumentative and, to the extent that it accurately reflects the evidence in the particular case, as stating merely the commonplace. (E.g., DeGeorge v. Crimmins (1967) 254 Cal.App.2d --- ^* 62 Cal.Rptr. 394; Hom v. Clark (1963) 221 Cal.App.2d 622, 647--649, 35 Cal.Rptr. 11.) The failure to give the instruction was not prejudicial error. (E.g., Hom v. Clark, supra, 221 Cal.App.2d at 647--648, 35 Cal.Rptr. 11; Abney v. Coalwell (1962) 200 Cal.App.2d 892, 899, 19 Cal.Rptr. 846; Callahan v. Theodore (1956) 145 Cal.App.2d 336, 339, 302 P.2d 333.)

The court did not err in refusing to give the second instruction. The instruction was based on the decision in Beck v. Kessler (1965) 235 Cal.App.2d 331, 45 Cal.Rptr. 237. In the Beck case there was uncontradicted evidence by the defendant driver that he saw the taxicab in which the plaintiffs were riding in time to avoid the collision. In this case one of the major questions for the jury to resolve was whether under all of the circumstances the defendant could have seen Michael if he were keeping a proper lookout. Had the requested instruction been given, it would have been error. (Cf. Abney v. Coalwell, supra, 200 Cal.App.2d at 899, 19 Cal.Rptr. 846.)

At the defendant's request the court gave BAJI No. 140.1: 'General human experience justifies the inference that when one looks in the direction of an object clearly visible, he sees it, and that when he listens, he hears that which is clearly audible. When there is evidence to the effect that one did look, but did not see that which was in plain sight, or that he listened, but did not hear that which he could have heard in the exercise of ordinary care, if such evidence is altogether true, it follows that the person was negligently inattentive. However such evidence may not be altogether true.

'The person in question may not have looked or he may not have listened, or he may both have looked and seen or may both have listened and heard; or circumstances may have existed that prevented an object which...