Hart v. Briskman
Decision Date | 01 April 1952 |
Citation | 110 Cal.App.2d 194,242 P.2d 341 |
Parties | HART v. BRISKMAN et al. Civ. 14873. |
Court | California Court of Appeals |
Dana, Bledsoe & Smith, San Francisco (Morton B. Jackson, San Francisco, of counsel), for respondents.
Frank B. Blum, Wm. A. Lahanier, San Francisco (Guernsey Carson, San Francisco, of counsel), for appellant.
George D. Knight, now deceased, was injured in an accident. He brought an action against Abraham L. Briskman, the driver of the truck that collided with his car, and Robert H. Winter, the driver of another truck that was involved in the events immediately preceding the accident. The Pacific Truck Service Corporation, employer of Winter, was also joined as a defendant. The jury brought in a verdict of $40,000 against all defendants. They all moved, on all of the statutory grounds, for a new trial. The motion of Briskman was denied. The motions of Winter and Pacific Truck were granted on the sole ground of error in failing to give a proffered instruction. Knight has appealed from the order insofar as it granted a new trial to Winter and Pacific Truck. Subsequently, Knight died, and Pauline Hart, the administratrix of his estate, has been substituted as the appellant.
The law applicable to such an appeal is well settled. In Scott v. Renz, 67 Cal.App.2d 428, 432, 154 P.2d 738, 740, it is summarized as follows:
'Of course, a new trial may be granted upon the ground that the jury was erroneously instructed upon matters of law. Code Civ.Proc. § 657; Mazzotta v. Los Angeles R. Corp. , 153 P.2d 338. This court has recently set forth the rules applicable to such an appeal in Conroy v. Perez 148 P.2d 680, 682, as follows:
'The Supreme Court, in the case of Mazzotta v. Los Angeles R. Corp. , 153 P.2d 338, 340, had the following to say concerning the discretion conferred upon the trial courts in such cases: 'It is well settled that the granting of a motion for a new trial rests so completely within the discretion of the trial judge that an appellate court will not interfere with his action unless a manifest and unmistakable abuse of discretion clearly appears. [Citing 11 cases].'' See, also, Brignoli v. Seaboard Transportation Co., 29 Cal.2d 782, 178 P.2d 445; People ex rel. Dept. of Pub. Wks. v. McCullough, 100 Cal.App.2d 101, 223 P.2d 37; Pezzoni v. City & County of S. F., 101 Cal.App.2d 123, 225 P.2d 14; Ridenour v. Scarcella, 107 Cal.App.2d 554, 237 P.2d 322.
The basic facts are as follows: The accident happened between 7:30 and 8 a. m. on December 18, 1947, on Highway 101 about a mile south of Petaluma. This is a level four-lane divided highway running north and south, the north and southbound lanes being divided by a five-foot dividing strip covered with diagonal concrete ribs. At the scene of the accident a dirt road comes into Highway 101 from the east, and on the northeast corner of the dirt road and 101 is a gasoline service station and cafe, catering to the trucking trade. Directly opposite where this dirt road comes into 101 there is an opening in the dividing strip to permit ingress and egress to and from the gasoline station.
At the time and place here involved there was a heavy wet fog. Between 7:30 and 8 a. m., Winter, in the course and scope of his employment with Pacific Truck, was driving an oil truck and trailer about sixty feet long, both empty, south on Highway 101, traveling about thirty miles per hour. His windshield wipers were working, his headlights were lit, and there were lighted clearance lights on each side of the equipment. Both windows of the cab of the truck were closed. The rear view mirror extending from the left side of the cab of the truck was filmed with fog, so that Winter could not see to the rear. The cab was also equipped with a state-approved reflector type arm signal which was controlled from inside the cab.
As Winter was proceeding south on 101 he decided to enter the service station, where his company had an account, to get gasoline for his truck. To get to the station, Winter had to make a left turn and thus cross the two northbound traffic lanes. Because his rear view mirror was filmed over so that he could not see to the rear, Winter pulled off the highway onto the shoulder to his right and brought his equipment to a full stop a short distance north of the gasoline station. He then opened the door of the cab to see if there were any vehicles approaching from the north. He observed none. He thereupon closed the cab door, put the vehicle into gear, and started to make his left turn. As he started up he noticed headlights in front of him approaching from the south. These were the headlights of the Briskman truck. Winter estimated that these headlights were 500 or 600 feet away when first observed by him. He then operated his arm signal to indicate a left turn, and proceeded to make the turn and to drive into the service station at a speed of eight to ten miles per hour. When the cab of the Winter truck was just entering onto the shoulder of the highway adjoining the service station, he noticed the approaching lights about 250 to 300 feet away. Winter could not estimate the speed of the approaching vehicle. He completed his turn into the service station and brought his equipment to a stop without mishap. The equipment was then completely off the highway. He did not know that there had been an accident until one of the operators of the service station informed him of that fact.
While these events were taking place, Knight, the plaintiff, was also driving south on 101 some distance behind the truck and trailer, at a speed of thirty-five miles per hour. He was driving in the right lane of traffic. He had his headlights on and his windshield wipers operating. When about 150 feet north of the opening in the highway he saw Winter engaged in making the left-hand turn. The truck and trailer were then at approximately a right-angle to the highway moving very slowly, and he could see the side lights on the equipment. Knight slowed down to ten or twenty miles per hour and safely passed the equipment of Winter. At that moment the rear of the trailer still covered the inside southbound lane of traffic. Just as he passed the truck and trailer he observed headlights coming from the south.
Briskman was driving a flat-bed truck loaded with empty chicken coops north on 101. He was in the outside lane for northbound traffic. He testified that he was going but twenty-five miles per hour as he approached the service station; that he first observed the truck-trailer when about 150 feet from it; that at that time it was still in the inside lane traveling south; that when he was about 125 feet away, the truck-trailer started to make a left turn, right in front of him; that he applied his brakes; that his truck started to skid and skidded across the northbound lanes, across the dividing strip, and over into the outside southbound lane, where it hit Knight's car, resulting in the injuries to Knight. Much of Briskman's testimony is contradicted by prior inconsistent statements, by other witnesses, and by the physical facts. There were skid marks on the highway showing that Briskman's truck skidded 184 feet before hitting Knight's car. Briskman is not a party to this appeal so that the evidence relating to his liability need not be further considered.
As already pointed out, the jury brought in a verdict against Briskman, Winter and Pacific Truck. All of the defendants moved for a new trial. The trial court denied Briskman's motion, and then entered its order granting the motions of Winter and Pacific Truck 'on the sole grounds of error in law committed by the Court's failure to give either defendant, Robert H. Winter['s], requested Instruction No. 6 or, in the alternative, B.A.J.I. Instruction No. 149.'
Winter's proposed Instruction 6, referred to above, reads as follows:
'I instruct you that while it is generally and ordinarily true that the approach for a left-hand turn shall be made in that part of the right half of the roadway nearest to the center line thereof and that said turn shall thereafter be made so as to leave the intersection to the right of the center lane of the roadway being entered, that it is nevertheless true that under certain circumstances and conditions where a different course is required in the interest of reasonable safety and where a person, because of peculiar conditions, is required to act differently and where, in the exercise of ordinary and reasonable care, such person does act differently that under such circumstances it is not negligent to follow a course which in the interests of safety is required by the surrounding circumstances.
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