Cole v. Ridings
Decision Date | 16 December 1949 |
Citation | 95 Cal.App.2d 136,212 P.2d 597 |
Parties | COLE et al. v. RIDINGS et al. Civ. 16998. |
Court | California Court of Appeals |
Preston W. Johnson, Long Beach, Henry F. Walker, Los Angeles, of counsel, for appellants.
Forrest A. Betts, Los Angeles, Gerald F. Smith, Jr., Los Angeles, of counsel, for respondents.
This is an appeal by plaintiffs from a judgment entered on the verdict in favor of defendants. The action is for damages for personal injuries sustained by the minor plaintiff in a collision between her and a motorcycle operated by defendant Smith. The minor plaintiff will be referred to herein as appellant.
Both sides concede that the evidence although highly conflicting would support a verdict and judgment either way on the issues of negligence and contributory negligence. However, appellant maintains that the court committed prejudicial error in instructions given and refused, particularly in view of the closeness of the question whether there was contributory negligence on the part of appellant.
The accident occurred at 4:30 p. m. of June 25, 1947, a dry, clear day, in the city of Long Beach on Temple Street about 100 feet north of its intersection with 8th Street, both streets having a width of 36 feet.
Appellant Leola June Cole, aged ten years, was visiting her grandmother, who lived in the second house north of said intersection on the east side of Temple Street. An ice-cream vendor traveling south on Temple Street stopped his truck directly across the street from the grandmother's house. Appellant and three small companions crossed the street and waited in line with other children at the back of the truck to buy ice-cream. While so waiting, the grandmother of appellant came to her front door and seeing the child near the truck, called to ask if she needed any money. Appellant looked in both directions and started toward her grandmother. She testified that when she looked south toward 8th Street she saw nothing on Temple Street between her and the corner, but she had a recollection that an automobile on 8th Street was then crossing the intersection. While walking across Temple Street and before she reached the east curb thereof, she was struck and rendered unconscious by a motorcycle operated by respondent Smith.
Respondent Smith, in the course of his employment of a pick up and delivery service for Riding Motors, had delivered a Cadillac car and was on his way back to his employers' garage driving a three-wheel Harley Davidson motorcycle north on Temple Street. As he approached the intersection of that street with 8th Street, an automobile traveling east on 8th Street passed through the intersection ahead of him; he shifted gears and crossed the intersection observing for the first time that an ice-cream truck was standing about 100 feet away, facing south on the west side of Temple Street. He saw no people about the truck, until the front of his motorcycle was about even with the front end thereof, when he saw appellant for the first time; he was then 18 to 20 feet away from her and was driving at a speed of 15 to 20 miles per hour. This witness testified that appellant was facing away from him and was 3 to 4 feet west of the center line of Temple Street; that she went about 8 feet from the time he first saw her until the impact, which was a point 3 to 4 feet east of the center line of Temple Street and about 15 feet west of the east curb thereof; that he awerved to the left to avoid appellant, but she came in contact with the right front shield or right front handlebar of the motorcycle and threw it out of control. That only a second of time elapsed from the time he first saw her and the impact and that he applied his brakes without success just before the impact. He testified that the little girl
The grandmother testified that the child was four or five feet behind the ice cream truck; that she glanced both ways as she left the truck and walked toward her across the street.
The driver of the truck testified he heard a woman's voice call out whereupon appellant 'ran out from the group of children into the street * * * she ran * * * was running when she started out'; that he glanced back to his truck after she left and glanced up again just in time to see the motorcycle hit her; that she was carried about 15 feet; that the motorcycle traveled about 45 or 50 feet after the impact and knocked over another motorcycle parked at the curb on the east side of the street.
The place of the collision was in a residential district, there being no marked crosswalks or traffic signals at the intersection. Appellant suffered severe injuries.
It is urged that prejudicial error was committed in giving the instruction re presumption of due care, to-wit: (Emphasis included.)
It is argued that in the circumstances presented herein, the jury might well have found the evidence of respondents' negligence to preponderate had the instruction not been given; but faced with requirement laid down therein, the jury apparently concluded that the evidence of negligence, although sufficient to preponderate over conflicting evidence, was insufficient to preponderate over such conflicting evidence plus the presumption of due care.
In Clary v. Lindley, 30 Cal.App.2d 571, 573, 86 P.2d 920, 921, the following appears:
"A disputable presumption is a substitute for proof of facts. It is a species of evidence that may be accepted and acted upon when there is no other evidence to uphold the contention for which it stands.' Noble v. Key System, Ltd., 10 Cal.App.2d 132, 137, 51 P.2d 887, 889. It may be controverted by evidence. Code Civ.Proc., § 1961. It is dispelled when evidence is produced by the party or his witnesses covering the subject of the presumption. Rogers v. Interstate Transit Co., 212 Cal. 36, 297 P. 884. When there is a conflict in the evidence introduced by opposing parties, there is no room for the presumption (Kelly v. Fretz, 19 Cal.App.2d 356, 65 P.2d 914), for the simple reason that one side or the other would be forced to introduce evidence to controvert other evidence, plus a presumption. (Paulsen v. McDuffie, 4 Cal.2d 111, 47 P.2d 709; Mundy v. Marshall, 8 Cal.2d 294, 65 P.2d 65).'
In Barker v. City of Los Angeles, 57 Cal.App.2d 742, 749, 135 P.2d 573, 577, the court discussed an instruction similar to that here under review, to-wit: 'From apparently conflicting opinions of appellate courts of california, the following rules may be adduced:
Applying the above rules to the instant cause, it was prejudicial error for the trial court to give the instruction on the presumption of due care, when considered in conjunction with the conflicting testimony which formed the basis of the jury's decision and also with other alleged erroneous instructions hereinafter discussed.
It is conceded by both sides that the court correctly instructed the jury on the conduct required of a minor, to-wit:
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