Faulk v. Soberanes
| Decision Date | 01 May 1961 |
| Docket Number | No. 19085,19085 |
| Citation | 13 Cal.Rptr. 387 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Anna C. FAULK, Plaintiff and Appellant, v. Wiletta SOBERANES, Defendant and Respondent. |
Robert Allan Hansen, San Francisco, for appellant.
Bledsoe, Smith, Cathcart, Johnson & Phelps, San Francisco, Robert A. Seligson, San Francisco, of counsel, for respondent.
Plaintiff appeals from a judgment entered upon a verdict for the defendant in an action for personal injuries. Three contentions are presented: (1) That the court erroneously refused to give appellant's proposed instructions on the doctrine of res ipsa loquitur; (2) that the court erroneously gave a 'mere happening of the accident' instruction; (3) that the court's instructions under the guest statute (Veh.Code, § 17158, former § 403) were erroneous. We find no error.
The complaint alleged that appellant was respondent's passenger; the answer, that she was a guest. Appellant relied entirely upon ordinary negligence; no contention is made that if she were a guest she would still be entitled to recover. The court properly told the jury that, if they found appellant to be a guest, they should find for respondent and disregard all instructions on the law of negligence.
This is a case in which, if a proper res ipsa loquitur instruction had been requested, it should have been given. Appellant's evidence showed that respondent, at about 9:00 o'clock at night, was driving westerly on highway 50 in the Sierra Nevada, a few miles east of Placerville. The accident occurred on a curve to the left when the car left the highway on the right and struck a tree. Speed was 50 to 55 miles per hour. These facts would require a proper res ipsa instruction. 'When a driver goes off the highway, or collides with a stationary object, the natural inference is that he has been negligent, and res ipsa loquitur applies.' Prosser, 'Res Ipsa Loquitur in California,' 67 Cal.L.R. 183, 207-208. A similar rule is stated in 5A Am.Jur., Automobiles and Highway Traffic, section 929, page 820. See also Druzanich v. Criley, 19 Cal.2d 439, 445, 122 P.2d 53; Mansfield v. Pickwick Stages, N.D., 68 Cal.App. 507, 509, 229 P. 890; Leitert v. Pickwick Stages, N.D., 68 Cal.App. 504, 506, 229 P. 889; Seney v. Pickwick Stages, 82 Cal.App. 226, 228-229, 255 P. 279; Fedler v. Hygelund, 106 Cal.App.2d 480, 485-486, 235 P.2d 247; Fiske v. Wilkie, 67 Cal.App.2d 440, 447, 154 P.2d 725.
The requested instruction, B.A.J.I. 206-B, reads in part as follows: 'From the happening of the accident involved in this case as established by the evidence, an inference arises that the proximate cause of the occurrence was some negligent conduct on the part of the defendant.' It was accompanied by the so-called 'educational' instruction, B.A.J.I. 206-C. As applied to this case, the proposed instruction is clearly erroneous, and the court properly rejected it.
Appellant had no recollection of what happened; the evidence was elicited from respondent under Code of Civil Procedure, § 2055. She was the only eyewitness. Her testimony was that two cars were approaching her on the curve, one of which was in her lane trying to pass the other, that the lights of the car in her lane were 'high,' that she thought it would run into her, that she pulled to the right to avoid a collision, that her reaction was 'practically instantaneous,' and that she ran into a tree. This version of the accident was partially corroborated by the testimony of a state highway patrolman who investigated the accident, and fully corroborated by appellant herself in a statement given to an insurance adjuster.
Such evidence certainly does not necessarily give rise to an inference that respondent was negligent, yet the instruction tells the jury that it does. That is why the instruction has been held to be improper. Kite v. Coastal Oil Company, 162 Cal.App.2d 336, 328 P.2d 45; Rayner v. Ramirez, 159 Cal.App.2d 372, 324 P.2d 83; Black v. Partridge, 115 Cal.App.2d 639, 252 P.2d 760 and cf. Barrera v. De La Torre, 48 Cal.2d 166, 308 P.2d 724; Tallerico v. Labor Temple Ass'n, 181 Cal.App.2d 15, 20-21, 4 Cal.Rptr. 880. The court did not err in rejecting it and therefore also properly rejected the 'educational' instruction. Kite v. Coastal Oil Company, supra. It was the duty of appellant, not the court, to prepare a proper instruction. Shaw v. Pacific Greyhound Lines, 50 Cal.2d 153, 158, 323 P.2d 391.
The form of the instruction is not criticized. Basically, appellant's contention is that such an instruction, when res ipsa loquitur applies as a matter of law or when accompanied by proper instructions upon res ipsa loquitur, is prejudicially confusing. Appellant's reliance is upon Jensen v. Minard, 44 Cal.2d 325, 282 P.2d 7; Alarid v Vanier, 50 Cal.2d 617, 327 P.2d 897, and Amar v. Union Oil Co., 166 Cal.App.2d 424, 333 P.2d 449. These cases are not in point. Here, the res ipsa instruction proposed having been properly rejected, it was not error to give a 'mere happening of an accident' instruction. Williams v. Cole, 181 Cal.App.2d 70, 74, 5 Cal.Rptr. 24, 27, and cases there cited. Jensen v. Minard, supra, is distinguished in Barrera v. De La Torre, 48 Cal.,2d 166, 170-171, 308 P.2d 724, in Shaw v. Pacific Greyhound Lines, supra, 50 Cal.2d 153, 157, 323 P.2d 391, and in Phillipa v. Noble, 50 Cal.2d 163, 166-167, 323 P.2d 385, all of which are relied upon in Williams v. Cole, supra.
The evidence points strongly to the conclusion that appellant was a guest, not a passenger. The parties are sisters (cf. Shapiro v. Bookspan, 155 Cal.App.2d 353, 358), 318 P.2d 123, and the jury was not required to accept their stories, even where they coincided, in view of the ambiguous position of respondent in the case. In her statement to the insurance adjuster, appellant stated 'I paid my sister nothing for the ride.' Respondent told him that the trip was for pleasure, to do a little gambling at Lake Tahoe, that she told appellant she was going, and that appellant asked to come along. On the stand, both ladies testified, in substance, that appellant suggested the trip, that her purpose was to go to Reno to see about her property and to order some trees and plants, and that she offered to pay for the trip. She did pay for gasoline. However, the parties never got to Reno; they stopped at Stateline, drank, gambled, ate, and started home. Appellant bought the drinks and the lunch. Certainly, on these facts, the jury could readily conclude that the two sisters were taking a pleasure trip, and that the payments made by appellant were not the or a motivating factor in respondent's going and taking her own car.
In its charge to the jury, the court gave the following instruction: This instruction is criticized on the ground that there was no 'sharing of expenses.' The contention is a quibble; respondent furnished the use of a new car for a trip of 200 miles or so, and was paid nothing for its use; she furnished a major part of the 'expense.'
The jury retired at 3:15 and returned to court at 5:00 asking for further instructions 'on the guest law.' The court reviewed the history of the statute, and then said ...
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