Guerra v. Balestrieri

• Decision Date: 27 September 1954
• Docket Number: No. 15867,15867
• Citation: 127 Cal.App.2d 511,274 P.2d 443
• Parties: Ernest GUERRA, Plaintiff and Respondent, v. Ignazio BALESTRIERI, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 443

274 P.2d 443

127 Cal.App.2d 511

Ernest GUERRA, Plaintiff and Respondent, v. Ignazio BALESTRIERI, Defendant and Appellant.

No. 15867.

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

Sept. 27, 1954.

Hoge, Fenton & Jones, San Jose, for appellant.

James F. Boccardo, San Jose, Edward J. Niland, San Jose, of counsel, for respondent.

FRED B. WOOD, Justice.

Plaintiff recovered a money judgment for injuries received when an automobile driven by him was hit by an automobile driven by defendant at the intersection of San Carlos and Prevost Streets, San Jose.

Defendant does not question the sufficiency of the evidence to support the verdict except that he claims that plaintiff was guilty of contributory negligence as a matter of law. He challenges a number of the instructions given, principally upon the ground that they find no basis in the evidence. It will facilitate the discussion of these points if we first summarize the salient features of the testimony.

San Carlos is an east-west street. Prevost runs north and south. Each is 40 feet wide with two lanes for traffic with parallel parking space on either side. At this intersection there are stop signs on Prevost, none on San Carlos. Plaintiff was traveling east on San Carlos; defendant, south on Prevost. It was about 3:30 p. m., February 6, 1951.

Plaintiff testified that as he approached the intersection he was proceeding at a speed of 25 miles per hour; when about 150 feet from it he began to slow down and when 100 feet away was traveling at 15 miles per hour. When 20 to 30 feet from the intersection, he looked to his left on Prevost Street, and was able to see 20 or 30 feet on Prevost Street from the intersection. He saw no cars there nor did he see any car stopped at the stop sign. He then looked to the right and, the front end of his car being at the west edge of the intersection and he seeing no cars coming up Prevost Street from that direction, he stepped on his gas pedal so he could cross and increased his speed from 15 to 20 or 25 miles per hour. 'Then,' said plaintiff, 'when I did that, * * * looking ahead, all of a sudden I heard something, and, you know, by the time I knew, I was with my feet up and my head down.' His car was hit on its left side when its front end was about half through the intersection. The point of impact was about 12 feet east of the west line and 22 feet south of the north line of the intersection. His car then swerved to the right and forward, hitting the left rear of a car parked on the south side of San Carlos, just beyond the intersection. It came to rest on its right side, about half a car length beyond the parked car.

Defendant testified that he stopped at the stop sign on Prevost, coming up to the white line; that while stopped he saw no autos approaching from the west on San Carlos; he had a clear view 125 feet westerly from his car, on San Carlos; that just as he started to move from the stop sign he looked again to his right and saw an automobile approaching from the west, about 125 feet away; thinking that he could make it he continued moving; the next time he saw that car was when he was in the intersection and it was two or three feet from him; that when he was in the intersection, 'that is all I saw, was this car, just swish, right in front of me, that's all.'

A police officer talked with defendant at the scene of the accident shortly after its occurrence. He asked defendant whether or not the latter stopped for the stop sign on the north side of San Carlos. Defendant 'turned around and looked toward the north, turned around and said 'I stopped." The officer asked him his distance from the other car when he first noticed danger and he said it was two or three feet. The officer also asked him when he first noticed the other car and defendant said '2 or 3 feet.' Upon the witness stand defendant denied that the latter question was asked of him. There was an odor of alcohol about the defendant there at the scene of the accident. Upon the witness stand defendant admitted he had had a glass of wine with his meal about three-quarters of an hour before the accident.

(1) The argument that it appears as a matter of law that plaintiff was guilty of contributory negligence starts with the assumption that it also appears as a matter of law that defendant stopped at the stop sign before proceeding into the intersection. With that as a premise defendant infers that plaintiff should have seen defendant's vehicle as plaintiff proceeded into the intersection and that such negligent failure to see contributed to the accident.

That is an invitation to this court to weigh the evidence, accept defendant's testimony that he did stop, and reject plaintiff's testimony that no car was in sight when, from a point 20 to 30 feet west of the intersection, he looked 20 to 30 feet up Prevost Street. It was the function of the jury to resolve such conflicts, a conflict which in this case the jury resolved in favor of plaintiff. It is no answer to say that defendant's testimony that he did stop was uncontradicted in the sense only that no person testified that he was observed entering without stopping. It was indirectly contradicted by other evidence in the case. Moreover, the trier of the facts is not required to believe everything that a witness says even if uncontradicted. Blank v. Coffin, 20 Cal.2d 457, 461, 126 P.2d 868; Hanna v. O'Connor, 106 Cal.App.2d 760, 767, 236 P.2d 181. A reviewing court must look to the evidence which is favorable to the finding or verdict and to inferences reasonably deducible therefrom, when ascertaining the sufficiency of the evidence.

Plaintiff, having looked to his left without seeing any oncoming traffic, was under no continuing obligation to keep looking in that direction. Gilkey v. Crow-Harr Lumber Co., 1951, 103 Cal.App.2d 150, 152, 229 P.2d 3; Lundgren v. Converse, 1939, 34 Cal.App.2d 445, 447, 93 P.2d 819. He had a right to assume, moreover, that any vehicle approaching on Prevost Street would obey the law, stop at the stop line and yield the right of way to plaintiff's car on the through highway. Jobe v. Harold Livestock Comm. Co., 1952, 113 Cal.App.2d 269, 274, 247 P.2d 951, Vehicle Code, §§ 82.5, 552(a).

(2) Defendant claims there was insufficient evidence to warrant the giving of instructions concerning the presumption of negligence which arises when a person drives an automobile while under the influence of intoxicating liquor, conduct proscribed by section 502 of the Vehicle Code. We do not so view it.

The question is whether or not there was substantial evidence that defendant was driving while under the influence of intoxicating liquor. In conducting the inquiry we must consider all the evidence and all reasonable inferences that tend to support a finding, disregarding all conflicts, a principle well expressed in Jones v. Yuma Motor F. Terminal Co., 45 Cal.App.2d 497, 500-501, 114 P.2d 438, 439, when testing the propriety of giving an instruction on the doctrine of last clear chance: '* * * we must consider all of the evidence before the court regardless of which party presented it and, disregarding conflicts, must view the evidence in the light most favorable to the contention that the doctrine is applicable, indulging every reasonable inference supporting the application of the doctrine. If under any reasonable view of the evidence the doctrine could apply it was proper to give instructions on the subject.' Concerning the propriety of giving an instruction on the subject here involved, this principle has been expressed in these words: 'While there is no legal presumption that one is intoxicated because he has taken a drink of liquor, it is within the province of the trial court or the jury to take into consideration the number of drinks of intoxicating liquor which one has imbibed, and his subsequent actions, in determining whether at the time of the accident such person is in fact intoxicated, and if intoxicated to such a degree as hereinbefore defined, to render judgment to that effect.' Knickrihm v. Hazel, 3 Cal.App.2d 721, 730, 40 P.2d 305, 309. Judicial precedents are numerous but, naturally, the circumstances in each case differ, no two cases being identical upon their facts. The California cases have been collected in 24 Cal.Jur. 830-834, Trial, section 95, and in 7 Cal.Jur.2d 306-308, Automobiles, section 394.

In the instant case the police officer testified there was an odor of alcohol about defendant after the accident. Defendant admitted having imbibed liquor less than an hour prior to the accident. If the jury believed the officer's testimony that defendant admitted not seeing plaintiff's car until he was two or three feet from it and disbelieved defendant's testimony that he stopped at the stop sign and then proceeded across the intersection in second gear, the jury well might infer that defendant drove at such a speed and with such a lack of perception of his surroundings that, coupled with the admitted drinking of liquor, reasonably indicated that he was driving his car while under the influence of intoxicating liquor. The jury was not bound by his statement that he drank only one glass of liquor.

The basic error in defendant's analysis of this issue is that he gives full weight to his testimony that he drank only one glass of wine that day, that he stopped at the intersection, and that he was only in second gear at the time of the accident. That, in effect, is to usurp the jury's function of weighing the evidence and resolving...