Faeh v. Union Oil Co. of Cal.
| Decision Date | 29 October 1951 |
| Citation | 236 P.2d 667,107 Cal.App.2d 163 |
| Parties | FAEH v. UNION OIL CO. OF CALIFORNIA et al. Civ. 18275. |
| Court | California Court of Appeals Court of Appeals |
Brennan & Cornell and Jerome L. Doff, all of Los Angeles, for appellant.
Bauder, Gilbert, Thompson & Kelly, Los Angeles, for respondent.
Plaintiff appeals from (1) a judgment in defendants' favor after trial before a jury in an action to recover damages for personal injuries resulting from an automobile accident, (2) an order denying his motion to correct a notice of intention to move for a new trial nunc pro tunc, pursuant to the provisions of section 473 of the Code of Civil Procedure, and (3) a purported appeal from the order denying his motion for a new trial.
Facts: Viewing the evidence in the light most favorable to defendants (respondents) and pursuant to the rules set forth in Re Estate of Isenberg, 63 Cal.App.2d 214, 215, 217, 146 P.2d 424, the facts are:
Defendant corporation was the owner of an auto-car ten ton tractor and trailer. At about 11:00 p. m. on March 12, 1948, defendant Coppage was driving the tractor and trailer southerly on Valley Boulevard. At the same time plaintiff was driving a Buick sedan in a northerly direction on a through highway named Mission Road.
Defendant Coppage came to a complete stop at the intersection of the two highways in compliance with a stop sign on Valley Boulevard. He intended to make a left hand turn onto Mission Road and continue in a southerly direction. When he stopped he observed the lights of plaintiff's car about 300 feet easterly of the intersection and believing that he had ample opportunity to cross into the intersection before plaintiff's car entered it he proceeded at about 5 miles per hour.
He then glanced to the right and observed that the traffic was clear, and then looked to the left and saw plaintiff's automobile approximately 60 feet away and in the lane of traffic nearest the easterly curb. After observing plaintiff's car the second time defendant Coppage applied his brakes when he was about 10 feet into the intersection and stopped within 32 inches. The automobile which plaintiff was driving struck the inside front wheel of defendants' truck moving it 3 feet sideways. The impact caused plaintiff serious personal injuries.
A police officer testified that he wrote on the police report that the sobriety of plaintiff was unknown, but that he detected the odor of alcohol on plaintiff's breath.
Questions: First: Did the trial court commit prejudicial error in giving three instructions concerning the same subject, to wit, whether defendants' vehicle entered the intersection when plaintiff's vehicle was on a through highway and constituted an immediate hazard?
No. The jury were properly instructed that even though the propositions governing defendant's conduct were stated in various ways that neither the repetition of instructions nor any other behavior on the part of the judge in delivering the charge was meant to indicate in one way or another what he thought of the controversy.
Clearly the mere repetition of instructions upon the same subject in view of the trial judge's admonition did not constitute prejudicial error. (Rios v. Bennett, 88 Cal.App.2d 919, 925, 200 P.2d 73.)
Neither Taha v. Finegold, 81 Cal.App.2d 536, 184 P.2d 533, nor Treadwell v. Nickel, 194 Cal. 243, 228 P. 25, reach a contrary conclusion. In the Taha case 16 instructions, almost duplicates, were given; 11 formula instructions, the cumulative effect of which, with other circumstances, induced the jury to return a verdict for plaintiff. Such is not the situation here.
In the Treadwell case it is said, 'Instructions which are framed solely for the purpose of, and which simply have the effect, of emphasizing some particular portion of the evidence, are not to be commended, and are properly refused.' (Treadwell v. Nickel, supra, 194 Cal. 262, 228 P. 33.)
Such proposition of law has no application to the facts of the instant case.
Second: Did the trial court err in instructing the jury as hereinafter set forth?
This question must be answered in the negative.
1. (Italics added.)
Plaintiff criticizes the use of the word 'possibility' in lieu of the word 'probability' in the foregoing instruction. Though it would have been better to use the word 'probability' instead of 'possibility' such artlessness in the framing of an instruction does not constitute ground for a reversal. (Musante v. Guerrini, 125 Cal.App. 556, 561, 13 P.2d 965.)
Galway v. Guggolz, 117 Cal.App. 639, 4 P.2d 290, and Buttrick v. Pacific Electric Ry. Co., 86 Cal.App. 136, 260 P. 588, relied on by plaintiff, are not here applicable for the court in each of the cited cases did not criticize the instructions because they were inartfully drawn but because they were erroneous. The facts are different in the instant case.
2. 'You are instructed in determining the question of whether or not the defendant Coppage entered the intersection when plaintiff's vehicle constituted an immediate hazard, that Coppage had the right to assume, until the contrary was apparent to a reasonable person, that vehicles on the through highway, including the plaintiff, would be driven at a reasonable and prudent rate of speed, and had a right to assume that motorists on the through highway, including the plaintiff, would operate their vehicles in a careful and prudent manner and that he had a further right to act and rely on such assumption.'
Plaintiff makes certain criticisms of this instruction, principally, (1) that after the word 'intersection' there should have been added the words 'of the through highway,' (2) that there should have been added to 'plaintiff's vehicle' the words 'was so near thereto,' and (3) that the instruction refers to a 'reasonable' person instead of to a 'prudent' person.
These criticisms are hypertechnical. There is no showing of any prejudice resulting to plaintiff which would justify the reversal of the judgment. (See cases cited in 3A McKinney's New California Digest, (1950), Appeal and Error, sections 1636-1637, page 217 et seq.) This is especially true since 5 instructions were given in which the judge used the term 'prudent person.'
3.
Where, as in the instant case, there is a general denial by defendant of negligence it is not error for the trial court to instruct the jury on the doctrine of unavoidable accident. There was no prejudice in such instruction.
Third: Did the trial court commit prejudicial error in refusing at plaintiff's request to instruct the jury as hereinafter set forth?
This question must be answered in the negative.
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