Davis v. Ewen, Argonaut Ins. Exchange, Intervener

• Decision Date: 08 February 1957
• Court: California Court of Appeals Court of Appeals
• Parties: Elsworth A. DAVIS, Plaintiff and Appellant, v. John W. EWEN, Defendant and Respondent. Argonaut Insurance Exchange, an Inter-Insurance Exchange, Plaintiff In Intervention and Appellant. Civ. 8925.

Page 908

306 P.2d 908

148 Cal.App.2d 410

Elsworth A. DAVIS, Plaintiff and Appellant, v. John W. EWEN, Defendant and Respondent Argonaut Insurance Exchange, an Inter-Insurance Exchange, Plaintiff In Intervention and Appellant.

Civ. 8925.

District Court of Appeal, Third District, California.

Feb. 8, 1957.

Ralph E. Kingston, Stockton, for plaintiff-appellant.

Partridge, O'Connell & Whitney, San Francisco, for plaintiff in intervention-appellant.

Jones, Lane, Weaver & Daley, Stockton, for defendant-respondent.

SCHOTTKY, Justice.

This is an appeal from a judgment entered on a jury verdict in favor of defendant and against plaintiff, Elsworth A. Davis, and plaintiff in intervention, Argonaut Insurance Exchange, in a personal injury action.

As grounds for reversal of the judgment appellants make the following major contentions: (1) There was no substantial evidence to support the verdict as a matter of law. (2) The court erred in failing to give instruction requested by the appellant on the doctrine of res ipsa loquitur. (3) The court erred in giving an instruction on the doctrine of unavoidable accident where such an instruction was not supported by the evidence.

The record shows that on October 25, 1954, Davis was a construction laborer working for the S. M. McGaw Company, and at approximately 7:30 a. m. was riding with another laborer in the cab of a pickup truck driven by a third McGaw employee, the foreman, being transported from the McGaw offices to the place of work. Davis was seated in the middle of the seat. The weather was clear, it was daylight and the streets were dry. The traffic going west on Miner Avenue in the City of Stockton was congested and stopped at the railroad crossing east of Miner Avenue. The vehicle which respondent was driving was immediately behind that in which appellant Davis was riding. After starting up, the traffic moved in this congested state at about 25 miles per hour up to where the collision took place. Upon approaching more closely to the intersection of Miner Avenue and Wilson Way, where traffic was controlled by traffic lights, according to the testimony of appellant Davis the driver of the vehicle in which he was riding brought the vehicle to a gradual stop about 8 feet to 10 feet behind the stopped vehicle ahead of him. At that time the respondent was following the vehicle in which said plaintiff was riding by approximately 20 feet and traveling about 20 to 25 miles per hour. When the respondent saw the vehicle ahead stop, he applied his brakes and stopped as fast as he could. His brakes were in excellent condition and he laid down 10 feet of skid marks up to the point of impact of the front end of the respondent's vehicle with the rear end of the pickup truck. Appellant testified that the vehicle in which he was riding was struck just as it 'got stopped still.' Respondent testified that the vehicle ahead stopped without warning and that the event happened so fast that respondent couldn't turn either way. Respondent contends that he was surprised and bases this contention on the following testimony:

'Q. Well, Mr. Ewen, you knew that the traffic was in more or less a start and stop condition as you were driving along there, didn't you? A. Absolutely.

'Q. So you weren't surprised to find that automobile stopping ahead of you, were you? A. No, I wasn't--I was surprised, yes, at this time I was surprised, but ordinarily I make the stop like everybody else. I was trying to make the light, too.

'Q. And when you say you were trying to make the light you were referring to the light--A. The light on Wilson Way.'

However, the appellants argue that the surprise of respondent amounted to his being surprised that he was again required to stop.

The driver of the vehicle in which appellant Davis was riding testified that the only damage to his vehicle was 'a very slight dent' in the left rear fender. The respondent expressed some doubt as to whether he had made the dent in the fender and stated that meeting the pickup truck squarely with the front end of his automobile as he did, it could not possibly get to the fenders past the pickup bumper because the fenders are ahead of the bed of the body of the pickup truck.

The impact, so far as appellant Davis was concerned, and according to his testimony, was sudden and unexpected, and it snapped his head forward and backwards quickly. Appellant testified that this caused him to have a headache and pain in the back of his neck immediately after the impact, but believing that he was not seriously injured, he worked at his regular work for the balance of that week, at which time he was laid off for reasons not connected with any claimed injury. He testified that during that time the pain became steadily worse.

Appellant made no complaint to his foreman at the time of the accident as to pain in his knee, shoulders or back, nor did he make any complaint the rest of the week. After the accident, on Monday, appellant was engaged in heavy construction work involving use of jackhammers, loading broken concrete, and digging ditches with shovel and pick, and he continued this type of work until he was laid off on Friday. Appellant's wife testified that appellant complained of pain in his neck on the evening of the day the accident occurred.

On Monday following the layoff, appellant came to the plant of his employer and talked to the superintendent and complained about an injury to his arm which had occurred a week or two previous when a compressor was claimed to have rolled upon it. The superintendent advised that he had no report on this injury. Appellant made no complaint at this time about pain in his neck or shoulders. Two days later the complaint in this action was filed.

Appellants' first contention is that the evidence is insufficient as a matter of law to support the verdict in favor of respondent. Appellants argue that the undisputed testimony of respondent himself shows that he was following too closely, that his automobile was in perfect operating condition, and that he failed to use due caution under the circumstances of the instant case.

Appellate courts have consistently held that rear-end collisions usually present questions of fact and not of law. The general rule is well stated in Lowenthal v. Mortimer, 125 Cal.App.2d 636, at page 638, 270 P.2d 942, at page 943, as follows:

'It is now well established that when one motor vehicle runs into the rear of another vehicle, negligence is a question of fact and not of law. Turkovich v. Rowland, 106 Cal.App.2d 445, 447, 235 P.2d 123; Wohlenberg v. Malcewicz, 56 Cal.App.2d 508, 133 P.2d 12. It is also the province of the jury to determine the proximate cause of an accident. Turkovich v. Rowland, supra.

'Cases involving rear-end collisions are legion. Although the contention is made often that the leader alone, or the follower alone, is guilty of negligence, in general it has been held that the case as presented by each party creates a question of fact for the jury and not a question of law for the court. Donahue v. Mazzoli, 27 Cal.App.2d 102, 80 P.2d 743.

'The appellant relies upon Gornstein v. Priver, 64 Cal.App. 249, 221 P. 396, The court, 64 Cal.App. at page 255, 221 P. at page 399, there held that 'The mere fact that he does run down the vehicle ahead of him furnishes some evidence that he either was traveling at too high a rate of speed for a highway crowded with other vehicular travel or that he was following too closely the machine ahead of him. See O'Connor v. United Railroads, 168 Cal. 47, 141 P. 809.' But it concluded that 'whether in any particular case the operator of the rear vehicle is negligent if he drives his machine so as to cause a collision with the one ahead depends upon all the circumstances surrounding the happening of the accident, and almost invariably presents a question of fact for the decision of the jury. * * *'

'The reasonableness of the speed at which defendant operated his vehicle, whether plaintiff gave a hand signal indicating an intention to stop, see Mazgedian v. Swift & Co., 22 Cal.App.2d 570, 71 P.2d 833, whether the stop was sudden, whether defendant was driving too closely behind plaintiffs' vehicle, whether defendant was inattentive, all were questions of fact.

'The jury resolved those factual elements in favor of defendant. The evidence supports that finding, just as it would have supported a contrary finding.'

In the instant case the evidence would support a jury finding that the pickup truck, in which appellant was riding, in a long line of cars, stopped suddenly without warning; that respondent immediately applied his brakes; that he had no opportunity to turn left or right; that his brakes were in good operating condition; that he had almost stopped his car when it struck the pickup, causing 'a very slight dent' in its fender. Appellant's testimony that the driver of the pickup did not make a sudden stop created only a conflict in the evidence, its credibility being for the jury. The question as to whether respondent was following too closely was presented to the jury under proper instructions to which appellant takes no exception. Thus, the evidence presented a conflict upon the issue of negligence, which was resolved against appellant by the jury verdict.

Furthermore, the issue as to whether appellant Davis was injured at all in this accident was vigorously contested by respondent. The performance of heavy manual labor for a period of five days including the day of the accident, without complaint to his employer, permits an inference of non-injury. After his discharge, and one week after the accident, he...