Fowler v. Callis

• Citation: 324 P.2d 728,159 Cal.App.2d 746
• Court: California Court of Appeals
• Decision Date: 29 April 1958
• Parties: Margaret FOWLER, Plaintiff and Appellant, v. George Henry CALLIS, John Doe Dempsey and John Doe Saunders, doing business as Dempsey & Saunders, et al., Defendants and Respondents. Civ. 17787.

Page 728

324 P.2d 728

159 Cal.App.2d 746

Margaret FOWLER, Plaintiff and Appellant, v. George Henry CALLIS, John Doe Dempsey and John Doe Saunders, doing business as Dempsey & Saunders, et al., Defendants and Respondents.

Civ. 17787.

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

April 29, 1958.

Rehearing Denied May 29, 1958.

Benjamin F. Marlowe, Oakland, for appellant.

James C. Calkins, Alameda, for respondents.

KAUFMAN, Presiding Justice.

The plaintiff, Margaret Fowler, appeals from a judgment entered or a jury verdict in favor of the defendant in an action for personal injuries. She urges the following errors on appeal: (1) the verdict is not supported by the evidence; (2) the trial court abused its discretion in sustaining the defendant's objection to the introduction of certain evidence; (3) the trial court erroneously instructed the jury; (4) defense counsel's reference to an insurance company constituted prejudicial error.

On the morning of April 26, 1955, at about 10:55 a. m., the plaintiff, a thirty-seven year old woman, was a pedestrian waiting for a bus near the intersection of 24th and Harrison Streets in Oakland. The garage of the defendant, Dempsey & Saunders, is located at that intersection. The plaintiff was standing on the south sidewalk of 24th Street, leaning against the bus stop sign, which was located in front of the defendant's garage, about 100 feet from the intersection.

On the morning of April 26, the defendant, Max Wrigglesworth, an employee of Dempsey and Saunders, had begun to install seat covers in a 1950 Chrysler automobile owned by the defendant, George H. Callis, an employee of the Stafford Ink Company. Callis died before the trial and the case against him and that against the ink company were dismissed. Wrigglesworth drove the Callis vehicle around the block from the service garage on Harrison Street, to 24th Street, and parked it facing west, partially on the sidewalk and partially on the street, with the front of the car beyond the garage doors, and about twenty-five feet from the bus stop sign. He engaged the emergency brake, left the keys in the ignition, and left the vehicle in gear, but did not inform Callis, who was around, of these facts. While Wrigglesworth was working on the front seat covers, Callis arranged samples in the car and brushed the cushions.

After finishing the front seat, Wrigglesworth went inside the garage to work on the rear cushions. Callis then got into his automobile apparently to turn on the heater. According to several eye-witnesses, the automobile veered backward in a straight line at considerable speed and struck the metal bus stop sign. The plaintiff was knocked down by the metal pole of the sign which fell on her, and pinned her under the car. The car left skid marks as follows: right rear wheel 20 feet; left rear wheel 12 feet, leading eastward. After the accident, the automobile, which had a standard shift, was in reverse gear. Plaintiff sustained serious and critical injuries, including a skull fracture and other permanent brain injury.

As the uncontroverted evidence shows that the vehicle was parked in violation of Vehicle Code, section 586, and plaintiff was clearly within the protection of that statute, the only question about the sufficiency of the evidence is whether the defendant's conduct was the proximate cause of the injury. Satterlee v. Orange Glenn School Dist., 29 Cal.2d 581, 177 P.2d 279. Plaintiff maintains that defendant's conduct was a concurrent proximate cause of the accident. "The sequence of facts, one to another, and the relation of negligent precipitous acts * * * and the determination of whether the causation was independent or concurrent are questions of fact." Burke v. W. R. Chamberlin & Co., 51 Cal.App.2d 419, at page 423, 125 P.2d 120, 123. Defendant's negligent act need not be the sole cause of the injury; it is enough if it is a legal cause. Merrill v. Los Angeles Gas & Elec. Co., 158 Cal. 499, 111 P. 534, 31 L.R.A.,N.S., 559. On the issue of proximate cause, our Supreme Court said in McEvoy v. American Pool Corp., 32 Cal.2d 295, at pgages 298 and 299, 195 P.2d 783, 786:

'The following rules from the Restatement of Torts with respect to proximate causation have been approved in California (Mosley v. Arden Farms Co., 26 Cal.2d 213, 219, 157 P.2d 372, 158 A.L.R. 872; Stasulat v. Pacific Gas & Elec. Co., 8 Cal.2d 631, 637, 67 P.2d 678), and are applicable in the present situation:

'Section 447--'The fact that an intervening act of a third person is negligent in itself or is done in a negligent manner does not make it a superseding cause of harm to another which the actor's negligent conduct is a substantial factor in bringing about, if (a) the actor at the time of his negligent conduct should have realized that a third person might so act.'

'Section 449--'If the realizable likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious or criminal does not prevent the actor from being liable for harm caused thereby.'

'Section 453, comment (a): 'If the facts are undisputed, it is usually the duty of the court to apply to them any rule which determines the existence or extent of the negligent actor's liability. If, however, the negligent character of the third person's intervening act or the reasonable foreseeability of its being done is a factor in determining whether the intervening act relieves the actor from liability for his antecedent negligence, and under the undisputed facts there is room for reasonable difference of opinion as to whether such at was negligent or foreseeable, the question should be left to the jury.''

In the light of the foregoing we cannot agree with the plaintiff that the defendant is liable as a matter of law. The question of proximate cause was one of fact properly left to the jury. Mosley v. Arden Farms, 26 Cal.2d 213, 157 P.2d 372, 158 A.L.R. 872; Fennessey v. Pacific G. & E. Co., 20...