Face v. Sarkis

• Decision Date: 07 March 1962
• Citation: 201 Cal.App.2d 45,19 Cal.Rptr. 856
• Parties: Kenneth O. FACE, Plaintiff and Appellant, v. S. Jay SARKIS and Sophie L. Cummings Sarkis, Defendants and Respondents. Civ. 6628.
• Court: California Court of Appeals Court of Appeals

Page 856

19 Cal.Rptr. 856

201 Cal.App.2d 45

Kenneth O. FACE, Plaintiff and Appellant, v. S. Jay SARKIS and Sophie L. Cummings Sarkis, Defendants and Respondents.

Civ. 6628.

District Court of Appeal, Fourth District, California.

March 7, 1962.

Rehearing Denied April 3, 1962.

Hearing Denied May 2, 1962.

[201 Cal.App.2d 46] Swing & Swing, San Bernardino, for appellant.

Eugene S. Ives, Los Angeles, for respondents.

GRIFFIN, Presiding Justice.

Plaintiff-appellant Kenneth O. Face obtained a jury verdict awarding him $12,500 for injuries claimed to have been received by reason of the negligence of defendants-respondents, husband and wife. The trial court granted the judgment for defendants notwithstanding the verdict. Plaintiff appealed from the judgment.

It is urged by defendants, in support of the judgment: (1) that the complaint did not state a cause of action, since the condition was obvious; (2) that there was no duty owing from the defendants to the plaintiff, since the condition was obvious; and (3) that the plaintiff was contributorily negligent, since the condition was obvious.

The complaint, in one cause of action, alleges that on January 16, 1957, at approximately 3:30 p. m., plaintiff was engaged in the delivery of propane gas to the defendants; that he was proceeding in a southerly direction along Tamarack Road; that his truck ran into a washed-out portion of the road, proximately causing physical injuries to him; that defendants knew, or in the exercise of ordinary care should have known, of the washed-out portion of the road, and failed to use ordinary care to repair the road or to warn of the washed-out condition. In a second cause of action, it is alleged, in addition, that for many years prior to the happening of the accident the defendants were lessees of the real property on which Tamarack Road was located and that the defendants were entitled to the possession and control of the real property which the road traversed.

Defendants, by answer, denied generally these allegations and alleged that the complaint did not state facts sufficient to constitute a cause of action. They also alleged contributory negligence on the part of the plaintiff. A motion for a judgment on the pleadings, and for a directed verdict in favor of the defendants, was made on these grounds and denied. The general rule in reference to motions for judgment notwithstanding the verdict is stated in Brandenburg v. Pac. Gas & Elec. Co., 28 Cal.2d 282, 284, 169 P.2d 909, 910:

'A motion for judgment notwithstanding the verdict of a jury may properly be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict. If there is any substantial evidence, or reasonable inferences to be drawn therefrom, in support of the verdict, the motion should be denied.' (Citing cases.)

The parties concede this general rule, but plaintiff argues that the allegations of the complaint were adequate to show a cause of action and that there was sufficient evidence to show negligence and that no contributory negligence as a matter of law was established. He relies on such authority as Powell v. Vracin, 150 Cal.App.2d 454, 310 P.2d 27; Austin v. Riverside Portland Cement Co., 44 Cal.2d 225, 233, 282 P.2d 69; Crane v. Smith, 23 Cal.2d 288, 296, 144 P.2d 356; Florez v. Groom Development Co., 53 Cal.2d 347, 360, 1 Cal.Rptr. 840, 348 P.2d 200; Sykes v. City of Los Angeles, 110 Cal.App.2d 57, 60, 241 P.2d 1004; Anthony v. Hobbie, 25 Cal.2d 814, 818, 155 P.2d 826.

While the reasons for the court's ruling are not necessarily binding on this court (Yarrow v. State of California, 53 Cal.2d 427, 438, 2 Cal.Rptr. 137, 348 P.2d '* * * the evidence shows as a matter of law that the defect in the road was an obvious one and the failure of the Plaintiff to see it constituted contributory negligence.'

687), the minute order granting the motion recites:

FACTS

Plaintiff testified generally that he had lived at Big Bear Lake for four and one-half years; that he was a truck-driver, delivering butane and propane gas to various customers on the regular route; that he was driving a cab-over-engine type of Ford truck with another employee on the day of his injuries; that a private dirt road (Tamarack Road) runs off of Highway 138 to the Sarkis place, a distance of about one-eighth of a mile, and is the only means of access thereto; that he was traveling about five miles per hour; that a particularly heavy rainstorm had occurred two to four days before the accident; that apparently a culvert had become clogged and water overflowed the roadway, causing three distinct ruts across it within a distance of four to five feet, and that each rut was apparently eight inches wide and six inches in depth and they were banked up and down rather than rounded. Plaintiff said that he did not see and was unaware of any washed-out area or ruts in the road as he approached them. The road was fairly level at that point and he was traveling in second gear. It was a dry clear day. Plaintiff did not notice any debris on the road, but he later noticed the ruts were about one-half full of leaves, twigs and washed-up debris. He testified that, when approaching the ruts, he was observing the roadway and saw nothing unusual, but when about 10 feet from them, traveling at about five miles per hour, he suddenly noticed them and applied his brakes but not in time and the front wheels of his truck dropped into them, causing considerable shock and pain to him and his fellow employee; that he found that the clutch pedal was then loose and he could not put it into gear again; that after making the repair he pulled the truck slowly out of the ruts and drove to defendants' home without further observation of the ruts.

Defendant S. Jay Sarkis, called under Code of Civil Procedure, section 2055, testified that he and his wife, for some years, ran a summer camp for girls; that at the time of the accident they did not own the property between the highway and their house, but that defendants did own the property where their house was located; that they had leased the property where Tamarack Road then existed and now exists; that at the time of the accident Mr. Sarkis took care of maintenance of the road, which maintenance consisted of pulling a drag by a jeep; that there was no maintenance done on the road from October until the time of the accident; that he had purchased gas for his use from this service for years; that he and his wife had been away for two weeks prior to January 16 and that he returned home on that day about 12:00 noon and drove an empty Chevrolet one-half ton pick-up truck over the road at about one to two miles per hour; that he did observe the ruts, described as washed-out portions of the road, as he approached them but did not inspect them; that while Face was crossing the ruts, he (Sarkis) heard some noise in that vicinity, went there and observed the stopped truck. He described the ruts as approximately eight inches wide and six inches deep and more or less square-sided, and said that they ran completely across the road and that leaves and debris were in the general vicinity of the ruts.

Plaintiff...