Daun v. Truax

• Decision Date: 11 October 1961
• Citation: 16 Cal.Rptr. 351,56 Cal.2d 647,365 P.2d 407
• Court: California Supreme Court
• Parties: , 365 P.2d 407 Jane DAUN, a Minor, etc., et al., Plaintiffs and Appellants, v. Roy TRUAX et al., Defendants and Respondents. S. F. 20718

Page 351

16 Cal.Rptr. 351

56 Cal.2d 647, 365 P.2d 407

Jane DAUN, a Minor, etc., et al., Plaintiffs and Appellants, v. Roy TRUAX et al., Defendants and Respondents.

S. F. 20718.

Supreme Court of California

Oct. 11, 1961.

Whitney & Hanson and Stanley D. Whitney, Alameda, for plaintiffs and appellants.

Woodrow W. Kitchel and D. W. Brobst, Oakland, for defendants and respondents.

PETERS, Justice.

Jane Daun, a minor, and John Daun, her father, the plaintiffs, appeal from a judgment in favor of the defendants rendered in an action for personal injuries and medical expenses incurred by the minor (hereafter referred to as plaintiff) when she was hit by an automobile driven by Roy Truax (hereafter referred to as defendant). The main contention of plaintiff is that certain instructions given by the trial court on the issue of her contributory negligence were conflicting, contradictory, inconsistent and prejudicial. This contention is supported by the recent case of Cummings v. County of Los Angeles, 56 Cal.2d 258, 14 Cal.Rptr. 668, 363 P.2d 900, in which this court reversed a defense verdict because of the giving of instructions substantially similar to those here involved. That case is here controlling.

The facts are relatively simple, and, on the whole, uncontradicted. On March 24, 1958, at about noon of a clear, dry, sunny day, the plaintiff, who was then five years and eight months of age, was dismissed from her kindergarten class and proceeded towards her home. After traveling a short distance from her school, plaintiff arrived on the northeast corner of the intersection of San Antonio Avenue and Sherman Street in the city of Alameda. At about this time defendant was driving a station wagon east on San Antonio Avenue and approaching Sherman Street. A Mrs. Stone, a neighbor of the Dauns, testified that about this same time she arrived in her car which she stopped at the stop sign located on the northwestern corner of the intersection. She observed the station wagon driven by Truax about 150 feet from Sherman Street and approaching the intersection going east at about 30 to 35 miles per hour. At the same time she saw a green car going west on San Antonio and approaching the intersection at about 20 to 25 miles per hour. Mrs. Stone also observed the plaintiff standing on the corner of the intersection. She called out to the child, the plaintiff waved back, and then started to run across the street in the unmarked crosswalk. Mrs. Stone testified that when the plaintiff left the sidewalk she ran out into the street almost in front of the westbound green car, so close in fact that the witness ducked her head momentarily fearing the child would be hit by that car. When the witness looked up the green car was passing through the intersection and had not hit the plaintiff. The witness next observed the plaintiff under the rear bumper of the defendant's car about 70 feet from the intersection, thus indicating that the child must have been dragged that far after the accident before defendant stopped. Mrs. Stone was positive that, when the child started directly across the street in the unmarked crosswalk, there were no vehicles then in the intersection.

Defendant testified that he approached the intersection at about 20 or 25 miles per hour; that at no time did he see the plaintiff either at the corner of the intersection or while crossing it, until after the accident; that while he was in the intersection he was aware of some object coming at his car rapidly from the left; that he felt a thump and heard a strange noise; that he brought his car slowly to a stop some 70 feet from the intersection; that he then got out and discovered the plaintiff crumpled under his rear bumper.

The jury brought in a defense verdict, and plaintiff has appealed. As already pointed out her main attack is on the instructions on contributory negligence.

Before this point is discussed, however, it must first be determined whether there is any substantial evidence of defendant's negligence. This is so because, if defendant, as a matter of law, was not negligent, then no instructions on contributory negligence, no matter how erroneous, could possibly be prejudicial.

The record contains evidence of such a character as to make the issue of defendant's negligence one of fact for the jury. Immediately before the accident the plaintiff was either standing at the northeast corner of the intersection or was crossing the street in the unmarked pedestrian lane. She was in plain sight. There was nothing to obstruct the view. Defendant testified that, as he approached the intersection, he was looking straight ahead; that he saw a car stopped at the northwest corner of the intersection, and another car coming towards him traveling west on San Antonio Avenue; that he also saw some children on the north side of San Antonio about 75 feet east of Sherman Street; that those children were stopped; that he did not see any other child or children in the area; that in particular at no time prior to the accident did he see the plaintiff standing on the northeast corner of the intersection, nor did he see her crossing the street. There was also evidence by Mrs. Stone that when plaintiff started across the street there were no vehicles in the intersection. She also testified that in this residential zone defendant approached the intersection at a speed of 30 to 35 miles per hour.

The trial court, at the request of both the plaintiff and defendant, quite properly instructed that: 'General human experience justifies the inference that when one looks in the direction of an object clearly visible he sees it. When there is evidence to the effect that one did look but did not see that which was in plain sight, it follows either that some part of such evidence is untrue or that the person was negligently inattentive.'

This instruction correctly states the law. In Gonzales v. Davis, 197 Cal. 256, at pages 261-262, 240 P. 16, at page 18, this court in an intersection case stated the rule as follows: 'The evidence in the case affirmatively shows that but a moment before the instant of his collision with the plaintiff herein two other small boys, the latter's companions, had crossed Pacific street upon this very crossing, and that the plaintiff, following them, was in the middle thereof and of Pacific street when he was struck by the defendant's automobile. It would seem to be an almost irresistible conclusion that, if the defendant had been keeping that sharp lookout ahead which the law requires of him when approaching such a crossing, he would have observed these boys, or at least the latter of them, in the act of essaying this crossing just ahead of his on-coming machine, and the inference would seem to be a most reasonable one that, since he did not, as he admitted, see the injured boy before the impact, and no sound of horn or bell or other warning was heard by any of the witnesses to the collision, the defendant was not exercising that degree of prudence and of watchfulness which the law under such circumstances requires. It was the province of the jury to draw such an inference, and, if so drawn, it would have sufficed to support a finding of culpable negligence on the part of the defendant, with a resultant verdict in the plaintiff's favor. The trial court by granting the defendant's motion for nonsuit took from the plaintiff the right to have the jury pass upon this question, and, we think, committed reversible error in so doing.'

In the instant case the evidence was uncontradicted that the plaintiff, just prior to the accident, was standing at the corner of the intersection and then started across the street in the unmarked pedestrian lane; that there were no vehicles in the intersection when she started to cross; that there were not obstructions between defendant and the plaintiff; and that other objects or persons in or near the intersection were observed by defendant. Plaintiff must have been clearly visible. Defendant testified that he did not see her. The jury must have found that defendant was negligent. Its verdict must have been based on the inconsistent, contradictory, and conflicting instructions given on contributory negligence. It follows that the giving of such instructions was prejudicial.

That the instructions on contributory negligence were erroneous under the rules announced in the Cummings case, supra, seems quite clear. The court gave the standard instructions on negligence and proximate cause. Contributory negligence was then defined as 'negligence on the part of a plaintiff, which negligence, concurring with the negligence of another person, contributes in some degree in proximately causing the damage of which the plaintiffs thereafter complain. One who is guilty of contributory negligence may not recover from another person for the injury suffered.' The basic speed law was then defined. Then the court told the jury that 'Conduct which is in violation of the provisions of the California Vehicle Code which I am about to read to you, unless otherwise therein provided, constitutes negligence as a matter of law. This means that if the evidence supports a finding and you do find that any party to this action so conducted himself or herself, it requires a presumption that he or she was negligent. However, such a 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 such as might reasonably have been expected from a person of ordinary prudence acting under similar circumstances, who desired to comply with the law.'

After reading the code section relating to the duties of the driver of a car, the court read section 562 of the Vehicle Code (now § 21954) which reads as follows: 'Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the...