Gadbury v. Ray

• Decision Date: 04 June 1959
• Court: California Court of Appeals Court of Appeals
• Parties: Carolyn Ann GADBURY and Hazel Gadbury, by her guardian ad litem, Harold T. Gadbury, Plaintiffs and Appellants, v. Harold James RAY and Elmer Ray, Defendants and Respondents. Civ. 6017.

Page 66

340 P.2d 66

171 Cal.App.2d 150

Carolyn Ann GADBURY and Hazel Gadbury, by her guardian ad litem, Harold T. Gadbury, Plaintiffs and Appellants, v. Harold James RAY and Elmer Ray, Defendants and Respondents.

Civ. 6017.

District Court of Appeal, Fourth District, California.

June 4, 1959.

Rehearing Denied June 22, 1959.

Hearing Denied July 29, 1959.

McKinney & Ballantyne, Visalia, Ralph Jordan, Visalia, of counsel, for appellants.

Maddox, Abercrombie, Kloster & Jacobus and Frederic A. Jacobus, Visalia, for respondents.

GRIFFIN, Presiding Justice.

Plaintiffs and appellants Carolyn Ann Gadbury, individually, and Hazel Gadbury, by her guardian ad litem, Harold T. Gadbury, brought this action against defendants and respondents Harold James Ray and Elmer Ray, for damages for personal injuries suffered as a result of a collision between two automobiles at the intersection of County Road No. 92 and Avenue 320, in Tulare County, about 4:30 P.M. on January 13, 1957.

Plaintiffs were guests in a 1950 two-door Chevrolet automobile owned and driven by James Gadbury, brother of Hazel Gadbury, who later married plaintiff Carolyn Ann Bray. This Chevrolet collided with a 1950 four-door Oldsmobile car owned by defendant Elmer Ray and driven by defendant Harold J. Ray.

County road No. 92, approximately 16 feet wide, was a rough oiled surface road running north and south. Avenue 320 was a fairly good oiled-surface road approximately 18 feet wide, running east and west. There were no control or stop signs at this intersection and no obstruction of view for north-bound or west-bound traffic, with the exception of some low brush and wire fence. It was described as an 'open intersection' in open, uninhabited county. The weather was clear, visibility good, and the surface of the road was dry. Plaintiffs were traveling west on Avenue 320. Defendant Harold Ray was proceeding north on County Road No. 92. At the trial he was called by plaintiffs, under section 2055 of the Code of Civil Procedure and testified that he was driving the Oldsmobile automobile on County road No. 92, and saw no other traffic at all; that he stopped at a boulevard stop intersection about one mile south of the intersection here in question and then proceeded north at about 45 to 50 miles per hour; that as he approached the intersection here involved he looked to his left for about 40 seconds and saw no traffic, then looked to his right about 50 feet before he entered the intersection and then, for the first time, noticed the Chevrolet car about 50 feet east of the intersection; that just before then he had his foot off of the throttle and was traveling about 40 miles per hour; that he did not apply the brakes; that he could not estimate the speed of the Chevrolet car at that time; that when his car reached the center of the intersection the front end of the Chevrolet struck the center of the Oldsmobile car, knocking him out of his car and causing injury to him.

Plaintiff Carolyn Ann Gadbury testified generally that all she remembered was that James Gadbury picked her up in his Chevrolet car that evening; that she remembered riding in the car in the front seat between James and Hazel; that she had ridden with James many times before and he was a careful driver, and that she did not feel she should help watch the road; that she did not remember the highway approaching this intersection; that she thought she had ridden over this road before; that she did not pay any particular attention to it or any intersection and did not remember which way she was looking just before the accident; that she knew where the road was; and that after the accident she woke up in the hospital.

James Gadbury, aged 19, who was injured in the accident, testified he did not even remember picking up Carolyn that day and did not remember anything about the accident until the next morning; that he had driven with her on many occasions before this and never drove recklessly and did not recall ever going through intersections at high rates of speed; that he later found out where the accident happened and he had driven over this road many times and was fairly familiar with the area; that he vaguely remembered telling the officers the next day he didn't see the other automobile and that this was a fact.

Plaintiff Hazel Gadbury testified the three of them left her house about 3 P. M.; that she was seated in the front seat near the right door; that they were driving on Avenue 320; that she remembered when they reached a point about one block from the intersection here involved; that James was then driving about 35 miles per hour; that she was somewhat accustomed to keeping her eye on the road and she does not remember of any warning given; that she did not remember anything after that; that after the collision she was lying out in a muddy field with the Chevrolet car behind her and Carolyn and James were near by; that she remembered speaking to James who was looking for Carolyn, and all were taken to the hospital. All claimed they were unable to testify as to any facts in reference to the accident and collision because of retrograde amnesia caused by shock.

As to the physical facts, photographs of the two roads, the intersection depicting the position of the cars and the surrounding area after the accident were taken and are in evidence. The California Highway Patrol investigating officer testified generally that the point of impact was near the center of the intersection; that there was no indication of any skid marks made by the respective cars prior to the collision, although there were certain skid marks from the intersection extending back about 42 feet easterly on Avenue 320; that he believed at first they were made by the Chevrolet car but later he concluded they were made by some other car; and that tire marks, 42 feet in length, did lead from the point of impact westerly to the position where the Chevrolet came to a stop, about 18 feet north of the roadway of Avenue 320 and about 18 feet west of the westerly edge of Roadway No. 92. The entire front portion of the Chevrolet was badly demolished. The Oldsmobile was found farther north in a northwesterly direction from the intersection, resting on its side against an anchor post of an electric pole. There were tire marks leading from the point of impact and running in a general northwesterly direction for about 66 feet before the Oldsmobile car turned over against the pole. The major damage to it was on its right side near the center door-post indicating the point of collision with the front of the Chevrolet car. These observations were made by the officers about five minutes after the accident.

Three contentions are made on this appeal. (1) Error in an instruction given and error of the court in instructing the jury on the issue of contributory negligence on the theory there was no substantial evidence supporting it, citing such authority as Badostain v. Pacific Electric Ry. Co., 83 Cal.App. 290, 256 P. 576; Buttrick v. Pacific Electric Ry. Co., 86 Cal.App. 136, 260 P. 588; Whitman v. Steiger, 46 Cal. 256; McGowan v. City of Los Angeles, 100 Cal.App.2d 386, 223 P.2d 862, 21 A.L.R.2d 1206; Lasater v. Oakland Scavenger Co., 71 Cal.App.2d 217, 221, 162 P.2d 486; Fugelsang v. Steiner, 115 Cal.App. 167, 1 P.2d 553; Bardin v. Case, 99 Cal.App.2d 137, 142, 221 P.2d 292; Marchetti v. Southern Pacific Co., 204 Cal. 679, 683, 269 P. 529; Wilding v. Norton, 156 Cal.App.2d 374, 379, 319 P.2d 440; Thompson v. Los Angeles, etc., Ry. Co., 165 Cal. 748, 134 P. 709; Rush v. Lagomarsino, 196 Cal. 308, 316, 237 P. 1066; Gigliotti v. Nunes, 45 Cal.2d 85, 286 P.2d 809; Murphy v. Atchison, T. & S. F. Ry., 162 Cal.App.2d 818, 329 P.2d 75; Scott v. Burke, 39 Cal.2d 388, 247 P.2d 313; and Swink v. Gardena Club, 65 Cal.App.2d 674, 151 P.2d 313. Defendants argue otherwise and cite such authority as Miller v. Atchison, T. & S. F. Ry. Co., 166 Cal.App.2d 160, 332 P.2d 746; Martindale v. Atchison, T. & S. F. Ry. Co., 89 Cal.App.2d 400, 201 P.2d 48; Lugo v. Atchison, T. & S. F. Ry. Co., 128 Cal.App.2d 402, 275 P.2d 605; Howard v. Alta Chevrolet Co., 111 Cal.App.2d 38, 243 P.2d 804; Seefeldt v. Pacific Greyhound Lines, 155 Cal.App.2d 853, 318 P.2d 723; Miller v. Peters, 37 Cal.2d 89, 230 P.2d 803; Parmenter v. McDougall, 172 Cal. 306, 156 P. 460; and Hoffart v. Southern Pacific Co., 33 Cal.App.2d 591, 92 P.2d 436. An analysis of the evidence presents a very close question on this point.

It is a general rule in respect to a passenger in a motor vehicle that he has the duty to exercise ordinary care under the conditions in which he finds himself and which should influence his conduct for his own safety; that while he cannot be presumed to know everything the operator must know, he cannot ignore the speed at which a car is traveling or the manner in which it is being operated; that he must be reasonably alert to conditions that would affect his own safety, but he does not have the absolute duty the operator has to know at what speed the car can be driven with safety. Negligence of the operator with respect to speed is not necessarily negligence of the passenger, and the conduct of the passenger must be judged in the light of the conditions under which he acts or fails to act, and in accordance with the general principles of negligence. If the passenger knew, or in the exercise of ordinary care should have known, that the car was being operated at an unreasonably high or imprudent speed and voiced no objection, under the conditions above mentioned, he may be guilty of contributory negligence, and if such negligence contributed proximately to the accident he cannot recover. It has been held that if circumstances are such that danger of collision does not become apparent to the guest in time to remonstrate, the guest's failure to caution the driver does not constitute contributory negligence, and this is true though the guest fails to maintain a...