Goncalves v. Los Banos Min. Co.
| Decision Date | 29 June 1962 |
| Citation | 23 Cal.Rptr. 21 |
| Parties | Delfina GONCALVES, Plaintiff, Respondent and Appellant, v. LOS BANOS MINING COMPANY et al., Defendants and Respondents, and Joe Menezes, Defendant and Appellant. Civ. 79. |
| Court | California Court of Appeals Court of Appeals |
Robert R. Elledge, Modesto, Chadeayne & Wilkinson, Tracy, Kroloff, Brown, Belcher & Smart, Stockton, for plaintiff and appellant.
McCormick, Barstow, Sheppard & Coyle, Fresno, for defendant and appellant.
Zeff, Halley & Price, Modesto, for respondents.
Delfina Goncalves, widow of Ernest Goncalves, sued for damages caused by his death in an intersection collision between a car driven by Joe Menezes, in which he was riding as a guest, and an automobile operated by Marjorie J. Buffuna (now remarried under the name of Sanchez) the accident occurred at an intersection of country roads on the west side of Merced County between Los Banos and Newman. The theory upon which Menezes was sued was that he was guilty of wilful misconduct; and it was claimed that Mrs. Buffuna (Sanchez) was negligent while acting in the course of her admitted employment by Los Banos Mining Company. The jury brought in a verdict for the plaintiff against Joe Menezes and for the defendants Los Banos Mining Company and Marjorie Buffuna (Sanchez) as against the plaintiff. The plaintiff appeals with respect to the judgment in favor of Los Banos Mining Company and Mrs. Buffuna (Sanchez), and Menezes appeals from the judgment against him for $25,000.
The appellants do not claim that there was any error in the pleadings, in the rulings of the court or in the instructions, and base their appeals wholly on the ground that the evidence does not warrant the jury's verdict, or the judgment based upon it. The appellant Menezes also urges that his motion for judgment notwithstanding the verdict should have been granted and asks that a judgment be ordered in his favor.
The fatal accident occurred on October 9, 1957, at approximately 10:30 o'clock a. m. On that morning Joe Menezes, Frank Deniz and his wife and Ernest Goncalves, the decedent, had attended a funeral in Los Banos. All of the occupants of the car were adults and were related to each other by marriage; Menezes was a son-in-law of the decedent and Deniz a brother of the plaintiff. They were returning home to the Newman area in a car driven by Joe Menezes, which was proceeding in a westerly direction on Pioneer Road toward its intersection with Ortegalita Road, a through highway guarded by stop signs. Both were straight, level roads traversing a flat farming country.
Menezes was traveling at a speed which he said was about 40 miles an hour, but which he admitted might have been as fast 60 miles per hour; the witness Frank Deniz estimated the speed to be 60 miles an hour at a point approximately 200 feet from the intersection.
Deniz and his wife were in the back seat, and the decedent occupied the front seat, to the right of the driver. No radio was playing in the car, and there had been little or no conversation among the occupants on their way from the funeral. No one in the Menezes car had at any time protested or commented upon the speed at which Menezes was driving or with respect to anything about the manner in which he operated the car. Mr. Deniz said that when the automobile was about 200 feet from the intersection he heard the decedent say to the driver, 'Joe, look, there is a stop ahead.' The stop sign which regulated traffic westbound on Pioneer Road at the intersection with Ortegalita is apparent in the picture showing the locus of the accident. Menezes did not apply his brakes in response to this statement of the decedent or make any application of them until immediately before the collision at the instant when he saw the other car and was on the point of colliding with it.
The evidence shows that Menezes' hearing was good. There is some testimony that might possibly lead to a doubtful inference that his eyesight was imperfect. He was not wearing glasses at the time; a year later he had a cataract operation; however, he testified that his eyesight was good at the time of the accident, and there is no evidence that he thought or knew that it was not.
Menezes admitted that he did not look either to his right or left as he approached the intersection. The field on his right was planted to low-growing crops; there were some weeds two or three feet high at the corner and some amount of interference with vision as to a part of the intersecting road by reason of the presence of trees. But the picture introduced in evidence showed that if he had looked he would have been able to see a southerly driven car on Ortegalita for a considerable distance. Menezes had never traveled on either road prior to the time of the collision.
The record is silent as to whether visibility by reason of weather conditions was good or bad, except that pictures taken later on the same day showed that the roads were dry, and the sun was shining. Similarly, though it is established by the record that the two roadways were, in general, well traveled, there is no specific mention of traffic on either highway other than the two automobiles directly involved.
The other automobile was driven by Mrs. Buffuna (Sanchez), admittedly acting in the course of her employment by Los Banos Mining Company; she was traveling south on Ortegalita Road. She testified that she knew that Ortegalita was a through highway, that she was thoroughly familiar with it, having traveled it many times, and she was aware that there was a stop sign at the intersection regulating traffic on Pioneer Road. She stated that she was looking in a southerly direction along the through highway as she approached the intersection and that she did not look to her left for any car which might be traveling westerly on Pioneer Road, because she was looking in the direction in which she was driving and knew such vehicles were required to stop before they entered her roadway.
THE APPEAL OF GONCALVES AS TO LOS BANOS MINING COMPANY AND BUFFUNA (SANCHEZ)
In order to warrant a reversal of the judgment as to Los Banos Mining Company and Buffuna (Sanchez) we would necessarily have to find that there is no substantial evidence in the record to support the implied finding of the jury that she was not negligent or that her negligence, if any, was not a proximate cause of the collision.
The firmly established rule, so well expressed in Crawford v. Southern Pac. Co., 3 Cal.2d 427, 429, 45 P.2d 183, 184, must be applied:
The determination of what a reasonably prudent person should have done or omitted to do in given circumstances depends in the last analysis upon the experience and good sense of the jury in weighing the evidence, and it is rare that an appellate court may lay down in explicit and detailed terms what a reasonably prudent person should have done or should not have done in opposition to an implied finding of negligence or of due care by a jury. It was primarily a question for the jury in this case to determine whether in the circumstances shown by the record Mrs. Buffuna (Sanchez) was guilty of negligence. (35 Cal.Jur.2d, Negligence, § 201, p. 722; 36 Cal.Jur.2d, Negligence, § 342, p. 84.)
The record shows that Mrs. Buffuna (Sanchez) was driving over a road with which she was familiar; she knew it was a through highway protected by stop signs. She said that she did not look to her left, because she was concerned where she was driving.
It is, of course, the duty of an operator of a vehicle at all times to do what a reasonably prudent person would have done in the same or similar circumstances, and the jury was fully and properly so instructed.
In considering the evidence as to negligence, the jury was entitled to give due weight to the fact that Mrs. Buffuna (Sanchez) knew that there was a stop sign at the point where Pioneer Road and Ortegalita intersected. Flannery v. Koch, 103 Cal.App.2d 55, 59, 228 P.2d 580, 583, a case factually very much resembling the instant action, observes:
In Shiya v. Reviea, 122 Cal.App.2d 155, 163, 264 P.2d 190, 196, it is said:
'The reasonableness of the conduct of a person relying upon the assumption that another will obey the law is primarily a question for determination by the trier of fact.'
Appellant Goncalves contends that the following excerpt from Beseau v. George, 111 Cal.App.2d 807, 809-810, 245 P.2d 542, 544, applies:
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