Hickenbottom v. Jeppesen
| Decision Date | 22 August 1956 |
| Citation | 144 Cal.App.2d 115,300 P.2d 689 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Matthew HICKENBOTTOM and Mary Hickenbottom, Plaintiffs and Appellants, v. Levi R. JEPPESEN, Defendant and Respondent. Civ. 16786. |
Lew M. Warden, Jr., Oakland, for appellants.
Ropers & Majeski, Redwood City, for respondent.
In this action for damages for injuries received in an automobile collision at the intersection of Alemany and Skyline Boulevards, San Francisco, verdict and judgment were for the defendant. Plaintiff-appellants claim (1) the evidence shows, as a matter of law, that defendant was negligent and plaintiff not, and (2) erroneous rulings during the course of the trial.
(1) As to the negligence of the respective parties, the evidence is sufficient to support the verdict. The evidence which plaintiffs invoke merely produced a conflict which it was the function of the triers of the facts, not that of a reviewing court, to appraise and determine.
At this intersection Alemany 1 runs in an easterly-westerly direction; Skyline, north and south. Plaintiffs were traveling westerly on Alemany, approaching Skyline; defendant, easterly on Alemany, approaching Skyline. At the intersection, defendant turned left on Skyline. The collision occurred in the northeast quarter of the intersection. It happened about 1:20 p. m. The weather was clear and the road dry. Plaintiffs' counsel in his opening statement said 'there was no speed involved in this accident.'
Plaintiffs claim the evidence demonstrates that defendant in making his left turn 'cut the corner' in violation of section 540(b) of the Vehicle Code, constituting negligence as a matter of law. It is true that defendant's testimony upon deposition is susceptible to the interpretation that in making his turn he crossed the center line of Alemany too soon, but at the trial he explained that he was confused as to the import of the question, interpreting the question as referring to the center line of Skyline, that in fact he did not turn until he reached the latter, though in making the turn his car may have straddled the center of the intersection. As said in Everman v. Wright, 135 Cal.App.2d 555, 557, 287 P.2d 533, 534, whether defendant 'made a left turn in violation of said section, and whether he was negligent at all * * * were questions of fact * * *.' Moreover, the principle that a violation of a statute is negligence per se is "subject to the limitation that the act or omission must proximately cause or contribute to the injury." Gomez v. Lindberg, 11 Cal.App.2d 730, 733, 54 P.2d 1153, 1155. We find nothing to the contrary in the authorities cited by plaintiffs.
Next, appellants contend that as a matter of physical necessity defendant violated their right of way, that when defendant was about to make his turn their car must have been so close to the intersection 'as to constitute an immediate hazard', Veh.Code, § 551(a). But that can not be said as a matter of law. There is evidence that when defendant reached the intersection he observed that plaintiffs' car was 200 to 300 feet away; there were no other vehicles in sight; the cars met in the intersection of the outer lane of Alemany and the inner lane of Skyline, the left front part of plaintiff's car and the right front of defendant's car making contact; and testimony of plaintiff Matthew Hickenbottom that his car hit defendant's. We can not say from this and other attendant circumstances that when defendant was about to make his turn a reasonably prudent person in his position would apprehend the probability of colliding with the approaching vehicle were he then to make the turn. Dawson v. Williams, 127 Cal.App.2d 38, 42, 273 P.2d 75; Ederer v. Shanzer, 134 Cal.App. 137, 139-140, 25 P.2d 38.
The question as to plaintiff's negligence was also one of fact. Plaintiff Matthew Hickenbottom testified he saw defendant's car as the two were approaching the intersection but could not estimate the distance of either of them from the intersection at the time (later he estimated that his own car was about 90 feet from the intersection at that time); there was nothing to obstruct plaintiff's vision the last 300 feet of his approach; that when he arrived at the intersection defendant had not quite reached it; that as he approached he did not observe anything unusual about defendant's car, observed no signals (defendant testified that he turned on his leftturn blinker lights when 75 to 150 feet from the intersection, and kept them on); that he was a car-length or better into the intersection when he saw defendant's car coming toward him; that defendant was a car length away when he first started to turn in plaintiff's direction; plaintiff then put his brakes on. Yet, there is evidence that plaintiff's car made skid marks commencing about 22 feet and ending about 7 feet east of the east line of the intersection (about 44 feet and 29 feet, respectively, east of the point of collision). That tends to indicate that plaintiff became aware of defendant's left-turn, or of his intention to turn appreciable sooner than he admitted on the witness stand but that he quit the use of his brakes sooner than he should. Also, the jury could have inferred that plaintiff was less attentive to the situation than he should have been, after he first observed defendant approaching the intersection. He seemed evasive as to where he was looking after he first saw defendant's car and when he next observed it just before the collision. He admitted that upon deposition he answered 'Yes' to the question, '* * * you say you first saw him [defendant] as he was coming up to make a turn; then you watched him for a while and then, I take it, you looked elsewhere for traffic on the Skyline, isn't that right?' While that might not be evidence of the fact, it tended to cast doubt upon the accuracy of his testimony given at the trial. This is not the kind of evidence that spells non-negligence as a matter of law. Moreover, if the jury found defendant non-negligent it would not matter whether plaintiff were negligent or not.
(2) The rulings complained of do not furnish a basis for reversing the judgment.
Plaintiffs complain of the refusal of an instruction defining 'immediate hazard,' couched substantially in the terms of B.A.J.I. No. 150-D. The court read to the jury that text of subd. (a) of section 551 of the Vehicle Code, prefaced by this statement, 'It will appear from a consideration of Section 551 of the California Vehicle Code that defendant was under a duty not to make a left turn until only after he had cautiously estimated that the automobile of plaintiffs, approaching from the opposite direction, was not so close to the intersection as to constitute an immediate hazard.' The requested instruction should have been given. However, we think the instruction actually given correctly informed the jury of defendant's duty toward the plaintiff. The words 'immediate hazard' seem reasonably clear in the context in which they appear, both in the statute and in the instruction given; the hazard of a collision. We find here no prejudice to plaintiff's case. See Pattisson v. Cavanagh, 18 Cal.App.2d 123, 63 P.2d 868, 64 P.2d 945; Roy v. Mission Taxi Co., 101 Cal.App.2d 438, 447-449, 225 P.2d 920.
Plaintiffs complain of the refusal of the court to give their instruction concerning their burden of proof, but this subject was covered by instructions that were given.
It was not error for the court to give an instruction on unavoidable accident, for there was a conflict of evidence on the question of defendant's negligence. Parker v. Womack, 37 Cal.2d 116, 122, 230 P.2d 823; Johnston v. Orlando, 131 Cal.App.2d 705, 711, 281 P.2d 357. Plaintiffs criticize the language of the instruction given, as confusing and misleading, but we do not find it so. Although perhaps not as clearly worded in all respects as B.A.J.I. No. 134, approved in Temple v. De Mirjian, 51 Cal.App.2d 559, 564-565, 125 P.2d 544, it gave the jury substantialy the same information as No. 134.
Plaintiffs say that the instruction given on contributory negligence was prejudicially erroneous in telling the jury that 'Ordinarily, the burden rests upon the defendant to prove contributory negligence, the exception being where such contributory negligence appears from the testimony offered on behalf of the plaintiffs.' Plaintiffs contend that the court thereby told the jury that the burden shifted in the event indicated. That language was unfortunate but we do not believe it misled the jury, for it was immediately followed by this definitive statement: 'In other words, the burden of proof is met as to contributory negligence if the same is shown by the evidence in the case regardless of by whom the evidence is introduced.'
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