Grasso v. Cunial

• Decision Date: 27 August 1951
• Parties: GRASSO et al. v. CUNIAL et al. Civ. 14618.
• Court: California Court of Appeals Court of Appeals

Page 32

235 P.2d 32

106 Cal.App.2d 294

GRASSO et al. v. CUNIAL et al.

Civ. 14618.

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

Aug. 27, 1951.

Hearing Denied Oct. 25, 1951.

D. W. Brobst, Enrico Dell'Osso, Oakland, for appellants.

Dana, Bledsoe & Smith, San Francisco (Morton B. Jackson, San Francisco, of counsel), for respondent.

GOODELL, Justice.

Plaintiff sued on behalf of himself and his six year old son for personal injuries sustained by them when their Chevrolet collided with the Oldsmobile driven by defendant. The jury returned a verdict for defendant and after the denial of a new trial plaintiffs appealed.

The collision occurred in the intersection of Ashby Avenue and Seventh Street in Berkeley, in the early afternoon of Saturday, September 27, 1947. Ashby Avenue runs approximately east and west, and is 56 feet wide, with its center marked by a double white line, on either side of which are two marked traffic lanes and a parking area. Seventh Street runs approximately north and south and is 46 feet wide, with no mark designating its center and no marked traffic lanes. An arterial stop sign at the southeast corner of the intersection controlled traffic crossing Ashby.

On that day a football game was scheduled and both eastbound lanes on Ashby Avenue were crowded with cars 'bumper to bumper' headed toward the stadium.

The plaintiff J. Grasso had taken his son for a ride and was traveling westerly on Ashby Avenue. Defendant was traveling northerly on Seventh Street and riding with him was a family friend.

Appellants' first contention is that the evidence is insufficient to sustain the judgment, their claim being that defendant's 'conduct in driving across Ashby Avenue was in clear violation of Sections 525 and 552 of the * * * Vehicle Code.'

Ashby Avenue was a 'through highway' as defined by § 82.5 Vehicle Code, with a stop sign protecting its traffic.

Subdivision (a) of § 552, Vehicle Code at the time in question read as follows: 'The driver of any vehicle shall stop as required by this code at the entrance to a through highway and shall yield the right of way to other vehicles which have entered the intersection from the through highway or which are approaching so closely on the through highway as to constitute an immediate hazard.'

The following facts are undisputed: the weather was fair, the visibility good, and the streets dry. Defendant stopped at the arterial stop sign for 3 or 4 minutes, his car being headed northerly in the middle of the east (or his right) half of Seventh Street. His progress was blocked by the two lanes of east bound traffic on Ashby. When a break came, a motorist on his left (whose eastbound car on Ashby was partly in the westerly half of Seventh) signalled him to cross over, and he started up, shifting from low to second gear and driving across Ashby without slackening his speed. His car was wholly north of the center line of Ashby, with its front within 5 feet of its northerly curb line (extended), when appellant's Chevrolet, traveling west on Ashby, struck it squarely in the middle of its right side. The impact smashed in the whole front of appellant's car, shoved respondent's Oldsmobile several feet, and threw Dennis from the back seat over the front seat and against the dashboard.

Just before the collision appellant had turned into Ashby from San Pablo Avenue and the westbound traffic on Ashby was light. His car was ahead of several others. In a signed statement given to the investigating officer he admitted 'driving west on Ashby about 25 miles per hour'. In court he testified 'I wouldn't say exactly, I was going between 15 and 20 or 25 miles an hour.' He admitted that he did not see respondent's car at any time approaching from the left, or until it was 10 or 15 feet in front of him. He testified also that as he approached the intersection there was no movement of traffic; 'everything was stopped'.

A Berkeley police officer who promptly reached the scene placed the point of impact 12 feet 9 inches south of the north curb of Ashby and 24 feet 10 inches west of the east curb of Seventh. His point represented the center of respondent's car at the instant of impact. Since it was about 16 feet long, this put its front about 4 feet 9 inches south of the north line of the intersection, and since Seventh Street is 46 feet wide it put the point of impact 22 inches left of the center of Seventh. The officer's measurements were based on debris found on the scene.

The conflicts are as follows: appellant testified that the accident happened about 1 p. m. while other witnesses, (including the investigating officer), fixed it at 2, 2:10 or 2:15. Respondent testified that his speed in crossing Ashby was approximately 7 or 8 miles an hour, while appellant testified that respondent's car 'shot out of there into my--I would say he was going 10, 12, 15 miles an hour, the way he shot out of there.' Appellant testified that before the collision he was driving 'maybe four or five feet from the double line' which would put him in the inner or southern lane (westbound) of Ashby, while the investigating officer (appellants' witness) placed the point of impact clearly within Ashby's outer or northern lane.

One of appellant's principal points is that respondent was negligent in crossing Ashby 'without having an opportunity to know whether or not an automobile was approaching so closely as to be an immediate hazard'. Respondent and his passenger both testified that at the center line of Ashby (as soon as they cleared the two lanes of east bound cars) they looked to the right and saw appellants' car at a distance of from 75 to 100 feet east of the intersection. Respondent when closely questioned testified that the distance was about twice the length of the courtroom, or about 88 feet.

Another one of appellants' main points is that respondent in crossing Ashby drove left of the center of Seventh Street. The witness Rose Bonkofsky, who was driving a car immediately behind respondent gave testimony which lent support to this, and appellant testified that 'at the point of impact his [respondent's] whole car was to the west side of the intersection.' Mrs. Bonkofsky had testified that when respondent stopped at the arterial sign he was on his right-hand side and in about his proper place. Both respondent and his passenger testified that when he started up he drove in a straight course and never got over the center of Seventh Street.

So far as the conflicts are concerned, it goes without saying that on appeal the testimony must be viewed in the light most favorable to the respondent. If that rule is to be followed, we must assume that the jury found that respondent was traveling at only 7 or 8 miles an hour; that appellant was going 25; that respondent had a proper lookout for 'immediate hazards', and that he stayed on the right side of Seventh Street.

We find nothing in this case to distinguish it from any other intersection case where there is conflicting testimony on questions which are purely for the jury. The verdict shows that the jury resolved all these conflicts in favor of the defendant.

At the time in question § 525, Vehicle Code read: '* * * Upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway * * *.' (None of the four exceptions found in this section touches this case.)

Let it be assumed that respondent did get over the line in crossing Ashby. There is abundant evidence to show that if he did, he was forced to do so in driving through the two lanes of traffic which had blocked him. See Henslee v. Fox, 25 Cal.App.2d 286, 77 P.2d 307; Fietz v. Hubbard, 59 Cal.App.2d 124, 128, 138 P.2d 315. Had he not moved through when he had the chance he would have held up everything behind him on Seventh Street. What he did was an ordinary, every-day maneuver for any motorist if no traffic was coming in the opposite direction. Moreover, although appellants lay considerable strees on this point they do not show by argument, citation, or otherwise, how such driving left of center could have been a proximate cause of the accident, or could have contributed to it in any degree. As respondent argues, assuming that the Oldsmobile had been wholly over to the left of center the collision would have happened just the same. If it had been entirely to the right of the center the collision would have occurred a split-second earlier and, theoretically at least, the force of the impact would have been greater. With respect to a somewhat similar situation the court said in Jacobsen v. Vaughn, 131 Cal.App. 277, 280, 21 P.2d 141, 142, a right angle intersection case: 'If, as claimed, a portion of [plaintiff's] car was on her lefthand side of the center of that road, the only effect would have been to give Vaughn [defendant] more time to avoid the accident * * *.'

Appellants lay equal if not greater stress on what they claim was respondent's failure to make sure that no vehicles were 'approaching so closely on the through highway as to constitute an immediate hazard.'

Section 552 does 'not set a hard and fast rule for the conduct of drivers approaching through highways'. Whether a driver acts with due care or negligently in proceeding across a through highway is a jury question. Wilkinson v. Marcellus, 51 Cal.App.2d 630, 633, 125 P.2d 584. In Hershey v. Laswell, 63 Cal.App.2d 219, 222, 146 P.2d 509, 510, the court said: 'The trial court adopted defendants' theory that plaintiffs' car was not close enough to constitute an immediate hazard and that implied finding is conclusive on appeal under such circumstances. Dickinson v. Pacific Greyhound Lines, 55 Cal.App.2d 824, 131 P.2d 401.' That language fits the instant case. In Glynn v. Vaccari, 64 Cal.App.2d 718, 721, 149 P.2d 409, 411, the court says: 'As stated in Casselman v. Hartford A. & I. Co., 36 Cal.App.2d 700, 708, 98 P.2d 539, 544: 'This appellant, in common with many users...