Cucuk v. Payne

• Decision Date: 18 April 1956
• Citation: 140 Cal.App.2d 881,296 P.2d 7
• Court: California Court of Appeals Court of Appeals
• Parties: Mike CUCUK, Plaintiff and Appellant, v. Bill Dean PAYNE and William A. Payne, Defendants and Respondents. Civ. 4994.

Page 7

296 P.2d 7

140 Cal.App.2d 881

Mike CUCUK, Plaintiff and Appellant, v. Bill Dean PAYNE and William A. Payne, Defendants and Respondents.

Civ. 4994.

District Court of Appeal, Fourth District, California.

April 18, 1956.

Lawrence W. Young and James C. Janjigian, Fresno, for appellant.

Hansen, McCormick, Barstow & Sheppard, Fresno, for respondents.

CONLEY, Justice pro tem.

Plaintiff was severely injured while crossing Tulare Street at 'R' Street in the City of Fresno, when he was struck by an automobile driven by Bill Dean Payne and owned by William A. Payne. The jury brought in a verdict for the defendants and plaintiff appeals.

Appellant first claims that the verdict was based on incredible testimony which was 'contrary to the laws of nature'; secondly, that certain instructions given by the court were erroneous; and thirdly, that the court erred in refusing some of plaintiff's proposed instructions.

On the first point, our inquiry must be limited to a determination as to whether the jury's verdict is supported by substantial evidence. Needless to say, inherently improbable testimony is not substantial evidence. It is neither the duty nor the right of an appellate court to resolve conflicts in the evidence, pass on the credibility of witnesses or determine as to any issue where a preponderance of the evidence lies. These are all matters to be decided by the trier of facts in the court below. Pfingsten v. Westenhaver, 39 Cal.2d 12, 19, 244 P.2d 395; Chan v. Title Ins. & Trust Co., 39 Cal.2d 253, 258, 246 P.2d 632; Rose v Melody Lane, 39 Cal.2d 481, 487, 247 P.2d 335. As is said in Estate of Trefren, 86 Cal.App.2d 139, 142, 194 P.2d 574, 575:

'* * * the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion of the trier of the facts. All conflicts must be resolved in favor of the respondent and all legitimate and reasonable inferences indulged in to uphold the verdict if possible. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial judge or jury. In re Estate of Bristol, 23 Cal.2d 221, 143 P.2d 689; In re Estate of Teel, 25 Cal.2d 520, 154 P.2d 384.

'As was said in In re Estate of Teel, supra, at page 527, of 25 Cal.2d, at page 388 of 154 P.2d: 'All of the evidence most favorable to the respondent must be accepted as true, and that unfavorable discarded as not having sufficient verity to be accepted by the trier of fact. If the evidence so viewed is sufficient as a matter of law, the judgment must be affirmed.'' (Crawford v. Southern Pacific Co., 3 Cal.2d 427, 429, 45 P.2d 183; Hicks v. Ocean Shore Railroad, Inc., 18 Cal.2d 773, 780, 117 P.2d 850; Tupman v. Haberkorn, 208 Cal. 256, 280 P. 970; Estate of Weber, 113 Cal.App.2d 160, 165, 247 P.2d 939.

The accident happened at about 7:20 p. m. on February 25, 1954, in the darkness of early evening, the lights of business houses in the vicinity and automobile headlights being on. The plaintiff, 71 years of age, was crossing Tulare Street near its intersection with 'R' Street in the city of Fresno. It was a signal-controlled intersection and he had waited for the green light to permit him to walk in a southerly direction across Tulare Street. The latter thoroughfare, running east and west, had four lined traffic lanes, divided by a double line in the center, and there was a 16 foot pedestrian lane at the corner for southbound foot passengers. The defendant had been driving north on 'R' Street, but with the green light signal he made a left-hand turn to go west on Tulare. His headlights were on and he was traveling at about 10 or 15 miles per hour when he made his turn. The testimony of the defendant driver and another eyewitness and of the police officer who investigated the accident establishes that the plaintiff was not in the pedestrian lane, as he claimed, at the time he was struck, but some material distance to the west of it. The plaintiff was dressed in a dark suit. His eyes were fixed on the green signal light, and he did not see the automobile until almost the instant of the impact. The jury saw and heard the witnesses; it was its function to determine the questions of fact relative to negligence and contributory negligence; and the trial court by denying plaintiff's motion for a new trial approved the jury's verdict. We cannot interfere with these factual findings unless, as plaintiff claims, the evidence supporting the jury's verdict is inherently improbable. Sandvold v. Perrot, 74 Cal.App.2d 344, 346, 347, 168 P.2d 995; Hines v. Milosivich, 68 Cal.App.2d 520, 522, 157 P.2d 45; Wright v. Sniffin, 80 Cal.App.2d 358, 362, 181 P.2d 675; Biondini v. Amship Corp., 81 Cal.App.2d 751, 766, 185 P.2d 94; Ferrell v. Matranga, 92 Cal.App.2d 620, 622, 207 P.2d 654. What counsel actually argue in attacking the verdict is that some of respondent's testimony is inaccurate in this, that the driver, Payne, and his witness Pedersen, estimated that plaintiff was 20 to 30 feet west of the westerly line of the crosswalk when he was struck, while the police officer, Oldfield, testified that by using a steel tape he ascertained that plaintiff was only 14 feet west of that line when he lay in the street after the accident. Counsel argue that the force of the collision would itself carry the plaintiff westerly, but the defendant driver testified that the plaintiff, when struck, 'just fell over' at the side of the car and that he was not carried farther to the west--except he 'could have moved about a half a foot or something like that, or maybe a foot back from where it was.' Mere inaccuracies in the estimates of distance made by witnesses do not make such evidence inherently improbable. It cannot be said that the testimony considered as a whole 'is inherently so improbable and impossible of belief as to, in effect, constitute no evidence at all.' DeArellanes v. Arellanes, 151 Cal. 443, 448, 90 P. 1059, 1061. The basic fact favoring the defense that the plaintiff was outside the pedestrian lane at the time he was hit is still established by substantial evidence even if the distance was not accurately estimated by two defense witnesses. Being satisfied that the verdict is supported by substantial evidence, we cannot disturb it.

Appellant claims error in the modification of instructions offered, and in the instructions given on contributory negligence, presumption of due care, and damages.

This court pointed out in Bramble v. McEwan, 40 Cal.App.2d 400, 411, 104 P.2d 1054, 1060, that a trial '* * * court is not required to give every instruction requested by a litigant and is not required to instruct the jury upon any particular phase of the law more than once, nor to say the same thing in as many different ways as the ingenuity of counsel may suggest.'

It appears that, taken as a whole, the instructions on contributory negligence, while concise and laconic, were complete. Plaintiff requested the following instruction which was modified by the court by striking out everything but the opening sentence:

'One of the defenses set up by the defendants in this case, is the plea of contributory negligence. In this defense the burden is upon the defendants to prove two things:

'First, that the plaintiff against whom the defense is asserted, was negligent.

'Second, that such negligence, if any, proximately contributed to cause the injuries complained of. If the defendants fail to prove either of these two propositions, this entire defense of contributory negligence fails.' (Omitted portion of proposed instruction in italics.)

But the court afterwards gave the following instruction, which covers the same ground:

'To establish the defense of contributory negligence the burden is upon the defendants to prove by a preponderance of the evidence that plaintiff was negligent, and that such negligence, if any, contributed in some degree as a proximate cause to the damages, if any, to plaintiff.'

Appellant complains because the last sentence of the following instruction was omitted:

'You are instructed that conduct which is in violation of any of the provisions of the California Vehicle Code I have given you in these instructions constitutes negligence per se. This means that if the evidence supports the finding, and you find, that person did so conduct himself, it requires a presumption that he was negligent. However, such presumption is not conclusive. It may be overcome by other evidence showing that under all the circumstances surrounding the event, the conduct in question was excusable, justifiable and such as might reasonably have been expected from a person of ordinary prudence. In this connection, you may assume that a person of ordinary prudence will reasonably endeavor to obey the law and will do so unless causes, not of his own intended making, induced him, without moral fault, to do otherwise.' (Omitted portion of proposed instruction in italics.)

The proposed instruction is practically identical with instruction 149 of California Jury Instructions, Civil (BAJI), which, as a whole and without separate comment as to the form of the last sentence contained in it, has been approved by the Supreme Court. Combs v. Los Angeles Railway Corp., 29 Cal.2d 606, 610, 177 P.2d 293; Ornales v. Wigger, 35 Cal.2d 474, 478, 218 P.2d 531. It does not necessarily follow, however, that in the instant case, the omission of the deleted portion was error.

All preceding references to sections of the Motor Vehicle Code contained in the court's charge, with the sole exception of one on the right-of-way of pedestrians at crosswalks, covered duties imposed by law on the defendant. With respect to the right-of-way, the plaintiff stoutly maintained that he was at all times in the crosswalk for pedestrians. It would necessarily follow that the...