Garibaldi v. Borchers Bros.

• Decision Date: 09 April 1957
• Citation: 309 P.2d 23,48 Cal.2d 283
• Court: California Supreme Court
• Parties: Albert Walter GARIBALDI, a minor, by his guardian ad litem, Albert F. Garibaldi, and Albert F. Garibaldi, Plaintiffs and Appellants, v. BORCHERS BROS., a corporation, and Edward Walter Silva, Defendants and Respondents. S. F. 19326

Page 23

309 P.2d 23

48 Cal.2d 283

Albert Walter GARIBALDI, a minor, by his guardian ad litem, Albert F. Garibaldi, and Albert F. Garibaldi, Plaintiffs and Appellants, v. BORCHERS BROS., a corporation, and Edward Walter Silva, Defendants and Respondents.

S. F. 19326.

Supreme Court of California

April 9, 1957.

Bruce F. Allen and Douglas, Zingheim & Allen, San Jose, for appellants.

William J. Connolly and Donald F. Farbstein, San Francisco, for respondents.

SPENCE, Justice.

Plaintiffs, father and minor son, appeal from a judgment in favor of defendants in an actio for damages for personal injuries sustained by the son when he came in contact with defendants' truck. They maintain that the court committed prejudicial error in instructing the jury. Viewing the evidence in the light most favorable to their contentions, the record does not support their position.

The accident occurred approximately midway between intersections on Sunol Street in San Jose on August 19, 1952, about 10:30 a. m. Sunol Street runs north and south, and is thirty feet wide. There are residences on both sides of the street in this area. At the time of the accident, cars were parked solidly along the west side of Sunol Street, leaving two lanes of traffic open. No parking was permitted on the east side. A dirt strip four feet wide extended between the sidewalk and the curb on this east side.

Plaintiff minor, then eight-and-one-half years old, and his seven-year-old sister were walking north on the sidewalk on the east side of the street. Defendants' concrete mixer truck was also proceeding north on the east side of the street. The driver saw the children as he approached them and he kept them under observation until his truck reached a point about fifteen feet south of where they then were, when he looked straight ahead. After he had passed the children he heard a scream and the sound of something hitting the side of the truck. The boy was found lying in the street near the east curb. A mark on the truck indicated that the point of contact was on the right rear mudguard, twelve feet from the front of the truck.

Defendant driver testified that he first observed the children when he was two hundred to two hundred and fifty feet from them; that his view of them was unobstructed; that his speed then was about twenty miles per hour; that there was traffic approaching from the opposite direction; that his truck was proceeding about three feet from the east curb; that when about one hundred feet from the place of the accident, he reduced his speed to fifteen miles per hour; that the children's backs were toward him and they did not look at him at any time; that they were 'on a hop and a skip down the sidewalk'; and that they 'kind of jacked toward the west of the sidewalk.' He further testified that he did not see the children leave the sidewalk or make any movement indicating that they were going on the street, but he admitted having told the police officer at the scene of the accident that he saw the boy step to the curb. The driver also testified that he did not sound his horn as he approached the children and only 'lightly applied' the brakes; that it was only after he heard the scream, that he really applied the brakes and stopped 'as quickly as (he) could' next to the curb.

The boy could not remember the accident. His sister, nine years old at the time of the trial, testified that she and her brother went from the sidewalk onto the dirt strip, where they waited for one northbound truck to pass, and then 'when the second one (defendants') was coming, my brother started to go out by the curb, and I don't think he saw the truck, he was looking at me, and he told me to get back on the sidewalk, and so I was in the dirt strip and the truck came along and hit him.' A neighbor testified that while she did not see the boy hit, she had noticed defendants' truck as it passed her house, which was just before the place of the accident; that it swerved toward the east curb because of an oncoming southbound truck; and that she estimated defendants' truck was then going about thirty miles per hour. Defendants' truck, with its load of concrete, weighed about fifteen tons.

At plaintiffs' request, the jury was instructed on the last clear chance doctrine. The formula prescribing the essential conditions for application of that doctrine has been recently restated. Brandelius v. City & County of San Francisco, 47 Cal.2d 729, 306 P.2d 432. Such restatement was based upon the formula appearing in other decisions of this court. Daniels v. City & County of San Francisco, 40 Cal.2d 614, 619, 255 P.2d 785; Peterson v. Burkhalter, 38 Cal.2d 107, 109-110, 237 P.2d 977; Girdner v. Union Oil Co., 216 Cal. 197, 202, 13 P.2d 915.

The parties first are in dispute as to whether the last clear chance doctrine was applicable at all here. Defendants claim that the evidence only shows that the boy stepped from his 'place of safety' on the sidewalk or curb and into the roadway after he had left the truck driver's view as the truck proceeded past him; that until the boy entered the roadway he was not in a 'position of danger' cf. Dalley v. Williams, 73 Cal.App.2d 427, 435, 166 P.2d 595, at which time he apparently ran into the rear side of the truck; and the truck driver therefore had no chance of avoiding the impact. It seems difficult to find a basis for application of the doctrine in view of the evidence presented and more particularly, in view of the account of the only eyewitness to the actual happening of the accident, the boy's sister. Her testimony indicated that as the boy walked toward the curb, he realized the danger of venturing into the roadway while trucks were passing and, in fact, told her to get back on the sidewalk as they waited. But assuming for the purpose of discussion that under any possible view of the evidence the last clear chance doctrine could be deemed applicable, the jury was instructed with respect to that doctrine and apparently did not find all the necessary conditions for its application to exist. Plaintiffs do not challenge the sufficiency of the evidence to sustain the adverse verdict, but they do contend that the court erred in its omission of their proposed modification of BAJI 205.

The instruction given by the court followed the exact language of BAJI 205. Plaintiffs proposed this BAJI instruction but had added to paragraph 'Third' thereof the following clause, which is italicized: 'Third: That the (truck driver) had actual knowledge of (the boy's) perilous situation, or that (the driver) knew facts from which a reasonable person would have believed that (the boy) was in peril.' This italicized portion was not given. The BAJI instruction on last clear chance, in unmodified form, was analyzed recently in Brandelius v. City & County of San Francisco, supra, 47 Cal.2d 729, 306 P.2d 432. It was there held to be erroneous as it was found to be 'misleading' and 'confusing' in its amplification of the prescribed elements for application of the doctrine. Plaintiffs' proposed modification of the third paragraph of the BAJI instruction would obviously have increased the already existing confusion in the BAJI instruction. We therefore conclude that plaintiffs may not successfully complain of the failure of the trial court to include plaintiffs' proposed modification in the BAJI instruction, which instruction was given at plaintiffs' request.

Plaintiffs argue that the force of the stated last clear chance doctrine was nullified by the giving of the following instruction on continuing negligence. (BAJI 205-A, Third Paragraph): 'The Doctrine of Last Clear Chance is invoked to defeat the defense of contributory negligence only in a case when, after plaintiff's negligence has put him into a position of danger, its work as an efficient agent of causation ceases, and it does not play a part in proximately causing the accident. When, on the other hand, a person's negligence not only places him in a position of danger, but thereafter it or its effect continues, and as a proximately causing factor, brings about, or helps to bring about, the accident, then the law of contributory negligence applies, and such person may not recover.' Plaintiffs object to this instruction, claiming that it declares that if plaintiff continues to be negligent up to the moment of the impact, he cannot recover from the defendant who failed to exercise the last clear chance to avert the accident, even though plaintiff's negligence was not a proximate cause thereof. Such proposition, of course, is not the law, Doran v. City & County of San Francisco, 44 Cal.2d 477, 486-487, 283 P.2d 1; Sills v. Los Angeles Transit Lines, 40 Cal.2d 630, 639, 255 P.2d 795, and the instruction does not so state. The first sentence states in effect that the doctrine does not apply unless the plaintiff's negligence has become 'remote in causation.' Center v. Yellow Cab Co., 216 Cal. 205, 207-208, 13 P.2d 918. The second sentence states that if the plaintiff's negligence or its effect continues so as to be a 'proximate cause' of the accident, then such negligence will bar a recovery. Gillette v. City and County of San Francisco, 58 Cal.App.2d 434, 440, 136 P.2d 611. Thus, the instruction is in line with the authorities dealing with the last clear chance doctrine which have rationalized that doctrine, in its relation to the doctrine of contributory negligence, on the basis of proximate cause. Sparks v. Redinger, 44 Cal.2d 121, 124-125, 279 P.2d 971; Girdner v. Union Oil Co., supra, 216 Cal. 197, 203-204, 13 P.2d 915; see annos.: 92 A.L.R. 47; 119 A.L.R. 1041; 171 A.L.R. 365.

However, while this instruction may be technically correct, it might be argued that it could be confusing to a lay jury were it not for other considerations. The instruction was immediately preceded by the general last clear chance instruction (BAJI 205), reciting the elements of the doctrine, including the...