Downing v. Barrett Mobile Home Transport, Inc.

• Decision Date: 09 April 1974
• Court: California Court of Appeals Court of Appeals
• Parties: Cheryl Jean DOWNING, Plaintiff, Cross-Defendant and Appellant, v. BARRETT MOBILE HOME TRANSPORT, INC., and Newton Wilson Mikesell, Defendants, Cross-Complainant and Respondents. Civ. 13297.

Page 277

113 Cal.Rptr. 277

38 Cal.App.3d 519

Cheryl Jean DOWNING, Plaintiff, Cross-Defendant and Appellant, v. BARRETT MOBILE HOME TRANSPORT, INC., and Newton Wilson Mikesell, Defendants, Cross-Complainant and Respondents.

Civ. 13297.

Court of Appeal, Fourth District, Division 2, California.

April 9, 1974.

Hearing Denied June 5, 1974.

Allan A. Sigel, Los Angeles, for plaintiff, cross-defendant and appellant.

Chase, Rotchford, Drukker & Bogust and E. Michael Kaiser, San Bernardino for defendants, cross-complainant and respondents.

OPINION

KERRIGAN, Acting Presiding Justice.

This is an auto vs. truck case wherein each driver sued the other for personal injuries sustained in the accident. A jury decided that neither was entitled to recover. The car driver advances the following arguments on appeal: (1) the court erred in its instructions to the jury; (2) the truck driver was negligent as a matter of law; and (3) the trial court erred in permitting improper cross-examination.

The accident occurred about 8:30 a.m. on April 2, 1971 on State Highway No. 74 near the intersection of Sanderson Road in an unincorporated area approximately three miles west of Hemet. Cheryl Jean Downing (Plaintiff) was driving a 1970 Datsun on her way to work at Rancho California. Newton Wilson Mikesell was driving a 1969 GMC tractor and was hauling a mobile home ('trailer') for delivery to Phoenix upon behalf of his employer, Barrett Mobile Home Transport, Inc. (Defendants). Both the car and truck were proceeding west on Route 74-a four lane road with two eastbound and two west-bound lanes.

The trailer was 64 feet long and 12 feet wide; at the rear thereof were a 'wide load' sign and flags. The truck was equipped with two side-view mirrors, one on each side of the cab. However, the truck driver never saw the plaintiff prior to the collision.

The accident occurred in a 65 m.p.h. zone. Plaintiff's car was overtaking defendant's truck prior to impact. The truck driver intended to turn right at Sanderson Road. Preparatory to making the right turn, the truck-trailer moved from the slow lane (lane 2), in which plaintiff's car was then proceeding, partially into the fast lane (lane 1), partially blocking both lanes.

Plaintiff testified that she saw the truck when it was 75 yards in front of her; suddenly, it made a change from the No. 2 lane into the No. 1 lane; she thought the truck was going to turn left; she did not see the defendant apply his brakes, slow down or activate the turn signals; she tried to stop but her wheels locked; she veered to the right towards the shoulder, missing the trailer as she sped past it on its right; she collided with the right front fender and bumper of the defendant's truck, which was in the middle of its turn.

Turning to the issues on appeal, plaintiff first maintains that the trial court committed reversible error in rendering the following instruction: 'The driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass to the left at a safe distance without interfering with the safe operation of the overtaken vehicle. . . .' (Veh.Code, § 21750.) Plaintiff argues that the instruction should not have been given because it reflects the rule governing normal overtaking and passing; that the truck herein was making a right turn; therefore, there was no evidence to support the rendition of the instruction.

While the foregoing instruction was not entirely applicable herein, plaintiff did not request amplification or proffer an instruction as to when a driver may pass on the right. Plaintiff's failure to complain below of the incompleteness of the instruction given--and thus to enable the trial court to remedy its omission--forfeits her right to complain of it now. (Ornales v. Wigger, 35 Cal.2d 474, 218 P.2d 531; Marcus v. Palm Harbor Hospital, Inc., 253 Cal.App.2d 1008, 61 Cal.Rptr. 702; Mula v. Mayer, 132 Cal.App.2d 279, 282 P.2d 107; Kuehn v. Lowthian, 124 Cal.App.2d 867, 269 P.2d 666; Sherrillo v. Stone & Webster Eng. Corp., 110 Cal.App.2d 785, 244 P.2d 70; 4 Witkin, California Procedure (2d ed. 1971) Trial, § 194 at 3013.)

Plaintiff argues that the trial court should have given the following instruction which governs cases where the rear vehicle (as here) is passing to the right: 'The driver of a motor vehicle may overtake and pass to the right of another vehicle only under the following conditions: (a) When the vehicle overtaken is making or about to make a left turn. . . . (c) Upon any highway outside of a business or residence district with unobstructed pavement of sufficient width and clearly marked for two or more lines of moving traffic in the direction of travel.' (Veh.Code, § 21754.)

Although the foregoing instruction would have been appropriate, plaintiff failed to request it. In a civil case, each of the parties must propose complete and comprehensive instructions in accordance with his theory of the litigation; if the parties do not do so, the court has no duty to instruct on its own motion. (Phillips v. Noble, 50 Cal.2d 163, 323 P.2d 385; Barrera v. De La Torre, 48 Cal.2d 166, 308 P.2d 724; Switzer v. State of California, 269 Cal.App.2d 627, 75 Cal.Rptr. 371; Gaspar v. Georgia Pac. Corp., 248 Cal.App.2d 248, 56 Cal.Rptr. 243; 4 Witkin, California Procedure (2d ed. 1971) Trial, § 194 at 3013.)

Plaintiff next contends that the truck driver was negligent as a matter of law in that he failed to signal before turning (Veh.Code, § 22107) and that the jury obviously found negligence on his part in that it decreed that he take nothing by way of his cross-complaint. But assuming, Arguendo, that the truck driver was negligent as a matter of law, the issue of contributory negligence may not be ignored.

The operator of a vehicle must keep a proper lookout for other vehicles or persons on the highway and must keep his car under such control as will enable him to avoid a collision; failure to keep such a lookout constitutes negligence. Huetter v. Andrews, 91 Cal.App.2d 142, 204 P.2d 655.)

The determination as to whether a driver in the rear was negligent in colliding with the vehicle in front of him is essentially a question of fact. (Getas v. Hook, 236 Cal.App.2d 705, 715, 46 Cal.Rptr. 249; Larson v. Solbakken, 221 Cal.App.2d 410, 427, 34 Cal.Rptr. 450.) Contributory negligence is ordinarily a question for the jury. (Florez v. Groom Development Co., 53 Cal.2d 347, 357, 1 Cal.Rptr. 840, 348 P.2d 200.)

Here there was evidence that plaintiff failed to see turn signals and failed to see the truck braking. Consequently, there was credible, though not overwhelming, evidence of contributory negligence.

Plaintiff next maintains that the trial court erred in permitting questioning revealing that she had been involved in a prior accident in 1969. During cross-examination of plaintiff, defense counsel attempted to show that plaintiff suffered a kidney condition (kidney stone) prior to this accident and that the kidney condition arose as the result of a previous accident which occurred in 1969. ¹

Generally, evidence that a litigant was involved in a prior accident is inadmissible when its only purported relevance is to show a propensity for negligent acts, thus enhancing the probability of...