Getas v. Hook

• Decision Date: 20 August 1965
• Citation: 46 Cal.Rptr. 249,236 Cal.App.2d 705
• Court: California Court of Appeals Court of Appeals
• Parties: Lou R. GETAS, Plaintiff and Appellant, v. Arthur William HOOK and Pete Gabac, Defendants and Respondents. Civ. 21643.

Page 249

46 Cal.Rptr. 249

236 Cal.App.2d 705

Lou R. GETAS, Plaintiff and Appellant, v. Arthur William HOOK and Pete Gabac, Defendants and Respondents.

Civ. 21643.

District Court of Appeal, First District, Division 1, California.

Aug. 20, 1965.

Clark, Heafey & Martin, Schofield & Cunningham, Oakland, for respondent Pelacio Gabac, Richard G. Logan, Oakland, of counsel.

Pratt & Berman, San Francisco, for appellant.

Bledsoe, Smith, Cathcart, Johnson & Rogers, San Francisco, for respondent Arthur William Hook, Robert A. Seligson, San Francisco, of counsel.

SIMS, Justice.

Plaintiff appeals from a judgment entered on a jury verdict in favor of respondents Arthur William Hook and Pelacio Gabac, sued as Pete Gabac, in an action in which she sought to recover damages for personal injuries suffered in an automobile accident which she alleged was caused by the negligence of one or both of the defendants.

She complains that the trial court erred in failing to give an instruction offered by her on the theory of res ipsa loquitur, and in giving an instruction which advised the jurors not to draw an inference of negligence solely from the fact that an accident happened.

The facts bearing on these issues are as follows:

On the morning of January 5, 1961, appellant, a driver for the Bank of America, with one Avalon, a utility driver who accompanied her to learn her routge, left Berkeley in the bank's car between 6:00 and 6:20 a. m. They proceeded out highway U.S. 40 to go to Vallejo via Carquinez Bridge. It was a foggy morning, but the patches of fog were not such as to impede her driving ability or speed. Appellant, who had been driving this route regularly for about a year, had never encountered ice on this road, but on this particular morning she first noticed ice on the highway shortly after leaving Berkeley, and subsequently around Pinole some six miles before the Carquinez Bridge. Her passenger also observed patches of ice.

Appellant left Berkeley in the innermost, left, lane and proceeded at about sixty to sixty-five miles per hour until she reached Pinole and encountered the icy patches. She then switched into the second lane and reduced her speed to thirty or forty miles per hour. At the approach to the Carquinez Bridge the four lanes of the eastbound road were convered with ice, and appellant slowed to between ten and thirty miles per hour.

The same morning respondent Gabac left his home in Concord to go to his work at Mare Island Shipyard, a trip he had made for some thirteen years. He turned on to U.S. 40 at the Cummings Skyway intersection about 2,500 feet west of the bridge approach. He had never seen any ice on the road in all the years he had been making the trip, and the first time that he was aware that there was ice on the road was when he slipped on getting out of his car.

He entered the freeway and proceeded in the left inside lane at a speed of from forty to forty-five miles per hour. As he approached the bridge he overtook and passed the car of one Gallop, who was in the second lane behind appellant, at a speed of between forty and fifty miles per hour. He then overtook appellant at a speed variously estimated from five to ten miles per hour faster than appellant was traveling, or from thirty-five to forty miles per hour.

After Gabac passed appellant his car skidded and he lost control of it. It spun around and finally came to rest so that its headlights were visible to the oncoming traffic. At least half of the car was in the lane to the extreme left. The extent, if any, to which it protruded into the next lane in which appellant was traveling is disputed. Meanwhile appellant had brought her car to a stop about seventy-five feet to the west of Gabac's car.

Airman First Class Gallop left his home in Richmond to go to his duties at Travis Air Force Base the same morning. He entered U.S. 40 and proceeded toward the bridge in the second lane from the left at a speed of about thirty-five to forty miles per hour because it was a little foggy. He first noticed the tail lights of appellant's car when he came up to the approach of the bridge and continued eighty or ninety feet behind her at the same speed. He observed Gabac's car go out of control and saw appellant's brake lights go on. He applied his brakes and for the first time noticed and felt ice on the road as his wheels started to slide. He came to a stop about eight to fifteen feet behind appellant's vehicle.

Respondent Hook left his home to go to his place of employment west of Petaluma as a civilian with the Army. He had been making this trip regularly for a period of two years and had never encountered ice on the road. He entered the highway and drove in the second lane from the left at speeds of from forty-five to sixty miles per hour until he was between 1,500 and 2,500 feet away from the bridge when he turned into the extreme left lane and let his car decelerate from forty-five miles per hour because of past experience with fog on the bridge. He never felt or observed any ice on the highway, but he was aware of cars ahead going at about the same speed which later proved to be those driven by appellant and Gallop. As he was slowing down to about twenty-five or thirty miles per hour he saw the headlights of the Gabac vehicle. He then returned to the next lane, and when he realized that the cars in front were stopped he applied his brakes. The back end of his car slid to the left, his car went out of control, and the left front of his car collided with the left rear of the Gallop vehicle, and came to rest twenty feet to the rear of it, facing back across the road.

Gallop had only been stopped a matter of seconds when he saw Hook's lights forty or fifty feet behind and realized he was not going to slow up. The impact followed and his car was knocked into the car operated by appellant. That car had been stopped about one half a minute when the passenger heard a bang, which was followed by an impact which knocked the keys out of the ignition to the back of the seat, and sprung the front seat on the driver's side.

There is a conflict in the evidence as to whether or not any cars came by in the two lanes to the right of appellant after the Gabac vehicle came to rest. All cars were left operable and the parties drove off from the scene on instructions from a highway patrol officer.

An officer of the California Highway Patrol who was on duty that morning testified that he arrived on the scene and found the cars as they had come to rest. He was called to another accident on the westbound highway 3 miles west of the bridge at Hercules and on returning to Vallejo noticed ice on the highway at one location on the eastbound highway west of the Cummings overpass.

The instruction given by the court of which appellant complains reads as follows: 'You are instructed that the mere fact that an accident happened, considered alone, does not prove that it was caused by the negligence of anyone.'

The instruction offered and not given recited: 'I instruct you that when an automobile which causes injury is under the exclusive control and management of a defendant and the accident is such as in the ordinary course of things does not happen if those who have the control use ordinary care, it affords reasonable evidence in the absence of explanation by the defendant, that the accident arose from want of ordinary care. Therefore, if you find that defendants and/or each of them had exclusive control and management of their automobiles at the time of the accident in question, and that the said defendant's automobile collided with the rear end of another automobile which was standing still at the time of the collision, then I instruct you that the fact of the accident alone affords evidence in the absence of explanations, that it arose from a want of ordinary care on the part of said defendant in the operation and control of his said automobile.' ¹

It is regrettable that counsel and court were not cognizant of and guided by the criticism voiced by the Committee on Standard Jury Instructions, Civil, of the Superior Court of Los Angeles County, and now found in the 1964 pocket parts of California Jury Instructions, Civil, at pages 79 and 80 under instructions No. 131 (Revised) and No. 131, 1. In view of the difficulty in applying an instruction similar to that given in cases where the doctrine of res ipsa loquitur or a violation of a statute might be involved, the committee withdrew its approval of the giving of such an instruction. Whether one takes the view that a 'mere fact' ² instruction is necessary 'to make clear to the jurors that it is not the mere happening of the accident, but is in the circumstances causing it, that fault and liability may be found' (Schauer, J. dissenting in Shaw v. Pacific Greyhound Lines (1958) 50 Cal.2d 153, 161, 323 P.2d 391, 396), or the view that such an instruction serves 'no purpose except to confuse and mislead the jury' because human experience indicates that accidents do not generally happen unless someone is negligent (Carter, J. concurring in Phillips v. Noble (1958) 50 Cal.2d 163, 169, 323 P.2d 385), the fact remains, as hereinafter appears, that regardless of its effect on the jurors, the instruction has been a prolific source of appeals when given in cases where res ipsa loquitur or statutory violations are involved. It should therefore perhaps be given the decent burial suggested by the aforementioned committee. ³

The difficulty of reconciling a 'mere fact' instruction with the doctrine of res ipsa loquitur was apparently first noted in Ellis v. Jewett (1937) 18 Cal.App.2d 629, 634-637, 64 P.2d 432. The subsequent history is reviewed and rules were crystallized in several opinions of the Supreme Court in 1958. Where the uncontradicted evidence warrants the application of the doctrine of res ipsa loquitur it is error to give a 'mere fact' instruction (Alarid v. Vanier (1958) 50 Cal.2d 617, 625, 327 P.2d...