Chavez v. Merced County

• Decision Date: 27 August 1964
• Citation: 40 Cal.Rptr. 334,229 Cal.App.2d 387
• Court: California Court of Appeals Court of Appeals
• Parties: Elizabeth Anne CHAVEZ, a minor, Naomi Marie Chavez, a minor, by and through their Guardian ad Litem, Ruth R. Chavez, and Ruth R. Chavez, Plaintiffs and Appellants, v. COUNTY OF MERCED, Defendant and Respondent. Civ. 313.

Page 334

40 Cal.Rptr. 334

229 Cal.App.2d 387

Elizabeth Anne CHAVEZ, a minor, Naomi Marie Chavez, a minor, by and through their Guardian ad Litem, Ruth R. Chavez, and Ruth R. Chavez, Plaintiffs and Appellants, v. COUNTY OF MERCED, Defendant and Respondent.

Civ. 313.

District Court of Appeal, Fifth District, California.

Aug. 27, 1964.

Rehearing Denied Sept. 23, 1964.

Hearing Denied Oct. 21, 1964.

Kane, Canelo & Mash, A. B. Canelo, Merced, Cyril Viadro, San Francisco, for appellants.

McCormick, Barstow, Sheppard, Coyle & Best, Fresno, William B. Boone, Santa Rosa, for respondent.

CONLEY, Presiding Justice.

In this action brought by his widow and children for the death of David A. Chavez, the appeal is from a judgment of nonsuit. This being so, we must apply well-known rules in considering the record and the briefs of the parties. Therefore, all evidence which favors the plaintiffs, including beneficial presumptions and inferences, must be taken as true. The lower court has no right to grant a nonsuit if there is any substantial evidence which, if believed by the triers of fact, would make out a case for plaintiffs. (McCall v. Otis Elevator Co., 219 Cal.App.2d 22, 24-25, 33 Cal.Rptr. 44.) An appellate court is forbidden in a case of this kind to weigh the evidence or to decide which of conflicting testimony is correct. We do not have a right to decide who should prevail on the facts of the case, but only whether the jury would be entitled to find from the evidence that the plaintiffs could recover, even though there is opposing evidence which, in the view of an appellate judge, might preponderate against the plaintiffs. In our system of jurisprudence the right of a party to have a jury decide the facts is so important that all legitimate considerations favor that function.

In considering this appeal, plaintiffs perhaps needlessly elected to restrict their claim for damages to the Public Liability Act. The judgment in the leading case of Muskopf v. Corning Hospital Dist., 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457, became final on February 27, 1961, whereas the alleged cause of action in this case arose on August 11, 1961. Section 22.3 of the Civil Code was passed by the Legislature at the regular session of 1961 (Stats.1961, ch. 1404, p. 3209); it declared a moratorium to enable the Legislature to determine whether and to what extent the governmental immunity doctrine should be re-enacted or abandoned, but the statute declared that on the 91st day after final adjournment of the 1963 regular session of the Legislature an action could be brought 'in the manner prescribed by law' on a cause of action arising between February 27, 1961, and the 91st day after adjournment, if a claim were filed in the matter, and such an action were not barred by any other law subsequent to the enactment of section 22.3 of the Civil Code (2 Witkin, Summary of California Law, Torts, Supp., § 23b, pp. 64-65). The opinion in Corning Hospital Dist. v. Superior Court, 57 Cal.2d 488, 496, 20 Cal.Rptr. 621, 370 P.2d 325, decided that all cases which were based on general governmental liability for negligence should be continued for trial and not heard until at least 91 days after the 1963 adjournment, permitting the parties, however, to file pleadings and to take depositions in the meantime; such causes of action were merely suspended and not destroyed. However, the plaintiffs in this case elected to go forward with the trial during the moratorium period and they reiterated specifically that they were relying wholly on the Public Liability Act.

The Muskopf decision did not alter or amend the Public Liability Act (Kotronakis v. City & County of San Francisco, 192 Cal.App.2d 624, 631, 13 Cal.Rptr. 709); in actions based upon it, the evidence has to comply with the conditions prescribed in that enactment (Thon v. City of Los Angeles, 203 Cal.App.2d 186, 189, 21 Cal.Rptr. 398; Kotronakis v. City & County of San Francisco, supra, 192 Cal.App.2d 624, 13 Cal.Rptr. 709; Akers v. City of Palo Alto, 194 Cal.App.2d 109, 122, 14 Cal.Rptr. 767; Ngim v. City & County of San Francisco, 193 Cal.App.2d 138, 144, 13 Cal.Rptr. 849). As in the Akers case, supra, the pleadings here were framed and the case tried and decided solely under the Public Liability Act and not upon any theory of general liability of the county for negligence, and it is too late on this appeal to proceed upon a new and different theory.

One August night in 1961, Mr. J. C. McClure was traveling north in his car on the Plainsburg road in Merced County toward the town of Planada behind another vehicle; he noticed that the automobile in front of him was weaving back and forth on the highway. Fearing to pass it, he followed the weaving car for two or three miles. Finally, it went off the east side of the road came back across the road, and shot into the borrow pit on the west side of the highway, striking and breaking an electric power pole on the way. Mr. McClure saw an electric wire fall, with a tremendous flash of blue light followed by flames in the dry grass at the side of the road; he drove past the car which had stalled just off the road after breaking the pole and hurried to the Merced County Fire Station in Planada where he spoke to the engineer on duty, Mr. J. O. Bradley, telling him, as he said, that he had seen a car hit an electric pole, that there had been a big blue flash of light, that the car was on fire, and that he should get out there without delay as there was a man in the car, also, that he should call his brother, who was a deputy sheriff in Merced, and have him cut off the electricity. Mr. Bradley on the contrary claimed that Mr. McClure had not told him that it was an electrical accident and fire, but we must take the testimony which favors the plaintiffs as being true for the purpose of passing on the nonsuit.

Mr. Bradley, the engineer in charge of the fire station, sounded the alarm to call the volunteer firemen, wrote a notification of the location of the fire on the blackboard so that volunteer firemen, upon coming to the station, might know where the fire was located, started his truck, warmed up his radio, and notified the central fire station in Merced. Mr. Bradley did not notify the Pacific Gas & Electric Company. He proceeded to the location of the accident and there parked his truck so that the cab was almost in line with the rear end of the damaged car. There was a spotlight on the truck which Mr. Bradley did not turn on, and he did not use a movable hand light, also available in the truck, to make a comprehensive survey of the locality. Mr. Bradley stated that he did not know there was a man in the crashed automobile until after the electrocution of Mr. Chavez. He left the motor of his cab running and went around to the front of his truck to get the motor started on the pumping apparatus. Mr. Bradley found that Clifford Stofle, a volunteer fireman who had arrived at the scene and who had asked him for water pressure, already had the valve on. As Bradley opened the throttle, he noticed a human elbow through the door of the stalled car; he realized then that there was a man in the wrecked automobile. He said that he then also saw the broken pole and knew that a high tension wire was down.

Almost immediately after there was a flash, a big arc flash, when Chavez was killed. The decedent Chavez, whose family home was a short distance from the fire, had been helping Stofle and another man to get the hose in position to direct water upon the burning grass and the stalled automobile. Chavez had possibly been asked by Stofle to help.

Mr. Bradley testified that had he known the fire was an electrical one, he would have warned everyone to stay back until the situation was sized up to see what danger was involved. He admitted that if he had been told that the car had hit a power pole and that there had been a big blue flash, that there were some wires down, and that he should call the P. G. & E., he would have immediately radioed central station, that 'We have power poles down, * * * notify the P. G. & E. Company.' Bradley also said that if he had had that information he would have immediately set up some kind of warning system to keep people back until he found out what exactly the situation was. He also admitted that he would have used his portable electric lantern and that he would have inspected the scene immediately after arrival to determine where the downed pole was, and also where the live wire was located. Mr. Bradley testified that he was in full charge of the fire until a senior officer arrived.

Mr. Stofle, the first volunteer fireman at the scene, testified that when he heard the fire alarm, he got out of bed and went past the Planada station to the fire, which took him a minute, or a minute and a half; when he arrived, the grass was burning and the wrecked car had just started to burn; he started to pull a line of hose off the fire truck; David Chavez came up and proceeded to help him. (Gov.Code, § 204.) Stofle and Chavez pulled the hose about 50 feet to the rear of the truck; Stofle returned to the truck to turn on the valve; at the truck, he talked to Bradley; Chavez then told Stofle he could not turn the valve on the nozzle and Stofle went to help him operate it; Stofle turned the nozzle on and started toward the burning car; the nozzle was adjusted to generate a fog-like stream of mixed air and water; Stofle did not see the downed power pole or any wires on the ground; Chavez and Stofle proceeded toward the car for about 10 feet; when they struck the live wire, he was in front and Chavez was behind him; both men were knocked down by the heavy charge of electricity; Chavez died; Stofle recovered.

At the time of the accident, the Public Liability Act was contained in sections 53050 to 53056 of the Government Code. In 1963, the Act was repealed by the Legislature (States.1963, ch. 1681, p. 3286, § 18) due to the fact that, in...