Graf v. Garcia

• Citation: 256 P.2d 995,117 Cal.App.2d 792
• Court: California Court of Appeals Court of Appeals
• Decision Date: 18 May 1953
• Parties: GRAF et al. v. GARCIA et al. Civ. 15330.

Page 995

256 P.2d 995

117 Cal.App.2d 792

GRAF et al. v. GARCIA et al.

Civ. 15330.

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

May 18, 1953.

Rehearing Denied June 17, 1953.

Hearing Denied July 15, 1953.

Arthur T. Bridgett, San Francisco, Frank B. Blum and McGuire & Lahanier, San Francisco, for appellants.

Campbell, Hayes & Custer, Austen D. Warburton, San Jose, Hardy, Carley & Brenner, John M. Brenner, Palo Alto (W. R. Dunn, Burlingame, of counsel), for respondents.

DOOLING, Justice.

In an action for wrongful death of Albert Graf defendants and cross-complainants Garcia recovered a judgment on their cross-complaint following the verdict of a jury. The action arose out of a collision at the intersection of Alma Street and San Antonio Road in Santa Clara County.

Alma Street at this point runs northerly and southerly and parallels the main tracks of the Southern Pacific Railroad which lie on the westerly side of Alma Street, the nearest rail being about 65 feet from the westerly edge of the paved portion of Alma. San Antonio Road runs easterly and westerly and crosses Alma Street at a right angle. In general the paved portion of San Antonio Road on both sides of Alma Street is 18 feet in width but on the westerly side of Alma commencing at the most easterly rail of the railroad track the sides of San Antonio Road spread out in wide arcs so that its paved portion where it intersects Alma is approximately 75 feet in width. At the time of the collision Alma Street was a through highway protected by stop signs on either side where San Antonio enters it. However because of the wide arc at the edge of San Antonio where it intersects Alma the stop sign on the westerly side of Alma was located about 36 feet from the center line of San Antonio, so far to the right of a car approaching Alma on San Antonio at a right angle that the direct beam of the headlights of such a car might not fall upon the stop sign. At the time of the collision the letters 'STO' appeared in white paint on the paved surface of San Antonio near its westerly intersection with Alma and beyond those letters a broken white line. The word 'STOP' had originally been painted on the pavement with a solid white line beyond it. An officer called by defendants as a witness testified of these painted marks: 'it had been worn quite a bit, the stop sign * * * from heavy travel.'

The collision occurred about 8:30 p. m. on February 2, 1949. The night was very dark, the sky overcast with clouds and there is testimony that there was a very heavy mist falling, it was drizzling. The intersection was not lighted or illuminated in any way.

The car driven by the decedent Graf approached Alma Street traveling easterly on San Antonio Road. Two men, Lucas and Palmer, who were riding in the back seat of the automobile driven by decedent were produced by plaintiffs and testified that Graf brought his car to a stop on the westerly side of the railroad tracks. This would be at a point something over 80 feet from the westerly edge of Alma Street. The car proceeded from that point very slowly, at a speed of from 5 to 10 miles per hour. Both witnesses testified on direct that Graf brought his car to a second stop between the railroad tracks and Alma Street. On cross-examination in answer to leading questions they conceded that the second stop might have been a 'rolling stop' or a 'hesitation stop'. Lucas summed up his testimony on this subject in the following language: 'I said originally it was a stop, and you said it could possibly not be a stop. I said my impression was a stop, it was going so slowly it could not have been a stop in every sense of the word, although we were going so slowly it might have, but it seemed to us, to me, at least, it seemed like a stop.' Graf then shifted gears and his car proceeded into the intersection picking up to a speed of 10 to 15 miles per hour. Just before the collision Graf exclaimed: 'Isn't that car going to stop?' or 'Is it going to stop?' and the collision occurred. Neither witness had observed any stop sign, and neither saw the other car until the instant before the impact.

The defendant Merle Garcia testified that she was driving a station wagon in a southerly direction on Alma Street at a speed of 35 to 45 miles per hour. She first saw the headlights of the automobile driven by Graf on the westerly side of the railroad tracks, 'back from the railroad tracks a little way, I don't know how far.' She then looked away and did not see the Graf car again until 'As I came into the intersection I turned my head back, and I looked out the window, and his headlights were shining directly into my right hand window, and he hit me.'

The Graf car was spun around clockwise by the collision and the station wagon driven by Mrs. Garcia turned or rolled over onto its top and struck a tree approximately 65 feet from the point of collision with such force as to uproot it from the ground. There was no other traffic on either highway at this time.

Respondents contend that on this evidence the court should have granted a nonsuit or a directed verdict against appellants on their complaint, taking the position that the evidence establishes decedent's negligence as a matter of law. This contention may best be discussed in connection with appellants' argument that the trial court committed prejudicial error in refusing to give their tendered instructions that the plaintiffs were entitled to the presumption that the decedent Graf used due care for his own safety.

Although there are some opinions of the District Courts of Appeal which it may not be possible to reconcile with this rule, an examination of the decisions of the Supreme Court on the subject satisfies us that where the question concerns the conduct of a person who is dead the presumption of the exercise of due care is operative unless the testimony of the witnesses produced by the party who would benefit by the presumption is 'wholly irreconcilable' with the presumption or 'only one reasonable conclusion [may] be drawn from the facts established by the testimony of' such witnesses and '[t]hat conclusion was that the deceased in that action had been guilty of contributory negligence.' Westberg v. Willde, 14 Cal.2d 360, 94 P.2d 590, 594; Anthony v. Hobbie, 25 Cal.2d 814, 155 P.2d 826; Scott v. Burke, 39 Cal.2d 388, 247 P.2d 313; Anderson v. County of San Joaquin, 110 Cal.App.2d 703, 244 P.2d 75.

The testimony of the eye-witnesses Lucas and Palmer produced by the appellants in this case is not of that character. Their testimony on the question of whether or not the decedent stopped his car a second time after crossing the railroad tracks and before entering the intersection does not establish with certainty that he did not, but beyond this there is another area which must be left to the determination of the jury upon which their testimony is not 'wholly irreconcilable' with the presumption of...