Hidden v. Malinoff

• Decision Date: 29 October 1959
• Citation: 174 Cal.App.2d 845,345 P.2d 499
• Parties: Eleanor HIDDEN and Mary Hidden, Plaintiffs and Appellants, v. George MALINOFF, Mrs. George Malinoff, and George Malinoff, Jr., Defendants and Respondents. Civ. 5950.
• Court: California Court of Appeals Court of Appeals

Page 499

345 P.2d 499

174 Cal.App.2d 845

Eleanor HIDDEN and Mary Hidden, Plaintiffs and Appellants, v. George MALINOFF, Mrs. George Malinoff, and George Malinoff, Jr., Defendants and Respondents.

Civ. 5950.

District Court of Appeal, Fourth District, California.

Oct. 29, 1959.

Hearing Denied Dec. 23, 1959.

Launer, Chaffee, Hanna Ward & Stack, Fullerton and Samuel Dreizen, Santa Ana, for appellant.

Clarence Sprague, Santa Ana, for respondents.

COUGHLIN, Justice pro tem.

The plaintiffs, as heirs at law of Theodore Hidden, brought this action for damages resulting from his death, which was caused by injuries sustained in an accident when he was struck by an automobile driven by the defendant George Malinoff. The plaintiffs based their cause of action upon alleged negligence of the defendant George Malinoff. The defendants denied this accusation of negligence and pleaded contributory negligence on the part of the deceased and unavoidable accident. The issues were tried by a jury which rendered a verdict in favor of the defendants. Judgment was entered accordingly, from which the plaintiffs appeal, contending that there is no substantial evidence to support the verdict; that the trial court erred in giving instructions on the doctrines of assumption of risk and unavoidable accident, as well as other instructions based on California Vehicle Code, Sections 582, 596.6 and 564; and that the trial court also erred in refusing to give certain instructions proposed by them.

The accident in question happened on August 27, 1955, at 3 A.M., when Theodore Hidden and his wife, Eleanor, one of the plaintiffs, were returning from a vacation trip, and were west-bound on U. S. Highway 66, near Amboy, California, when, because of motor trouble, which had plagued them before during their return trip, Mr. Hidden pulled to the right side of the highway; stopped his car; got out of the driver's side, and proceeded toward the front of his automobile. At this place in the highway there is one west-bound lane, 11 feet in width, which adjoins a shoulder 8 feet in width. The defendant George Malinoff, who was driving his son's automobile, in which his wife and his son, the other defendants, were riding, also was proceeding west-bound on highway 66; did not see Mr. Hidden; and ran into him.

The evidence, which includes the testimony as well as inferences which reasonably may be drawn therefrom, is in conflict respecting the position of the Hidden car, the condition of the lights thereon, the position of Mr. Hidden at the time of the impact, the speed of the Malinoff automobile, and the manner in which the collision occurred. The record on appeal contains substantial evidence from which the jury could have concluded that the Hidden car was parked partially upon and two feet in from the edge of the main traveled portion of the highway; that the rear lights of that car were not burning; that Mr. Hidden did not get to the front of his automobile before the accident, as contended by the plaintiffs; that he was tired, having traveled since 12:30 P.M. on the previous day; and that, at the time of the impact he was in the main traveled portion of the highway, south of his automobile.

The evidence also would support a conclusion that the defendant automobile was being driven wholly on the main-traveled portion of the highway, at a fast but reasonable rate of speed, with headlights burning, and that the driver of this car was awake and looking ahead, although he did not see the Hidden car or the deceased prior to the accident.

When reviewing the sufficiency of evidence to support a verdict, an appellate court must accept as true that testimony and those inferences reasonably deducible therefrom which will support that verdict. Thomas v. Hunt Mfg. Corp., 42 Cal.2d 734, 736, 269 P.2d 12; Bancroft-Whitney Co. v. McHugh, 166 Cal. 140, 142, 134 P. 1157.

Whether the conduct of the defendant George Malinoff or the conduct of the deceased constituted negligence, and whether such conduct was a proximate cause of the accident, either solely or contributively, were questions for determination by the jury as matters of fact. The contention of the plaintiffs that the verdict of the jury is not supported by the evidence as a matter of law is without merit.

However, errors in the giving of certain instructions at the request of the defendants deprived the plaintiffs of a fair trial and require a reversal of the judgment. Among such instructions were the following upon the doctrine of assumption of risk:

'We have a legal principle commonly referred to by the term 'Assumption of Risk'. It now will be explained to you:

'A person is said to assume a risk when he freely, voluntarily and knowingly manifests his assent to dangerous conduct or to the creation or maintenance of a dangerous condition, and voluntarily exposes himself to that danger, or when he knows that a danger exists in either the conduct or condition of another or in the condition, use or operation of property, and voluntarily places himself or remains, within the area of danger.

'A person who thus assumed a risk is not entitled to recover for damage (caused him without intention and) which resulted from the dangerous condition or conduct to which he thus exposed himself.

'Distinction should be noted between the assumption of risk just described which bars recovery, and the ordinary and necessary acceptance of common risks such as surround us all and that lie in the possibility that other persons will not perform their duties toward us. As to this latter kind of every day risk, a person will not be barred from recovery for damage by the fact, if it be a fact, that while he, himself, is exercising ordinary care, and when nothing exists in the circumstances that either cautions him, or would caution a reasonable prudent person in like position, to the contrary, he assumes that others will perform their duties toward him and acts on that assumption.' (Italics ours.)

In addition, the jury was instructed, in substance, that assumption of risk must be voluntary, which required that the person in question must have actual knowledge of the danger and freedom of choice, and also that the factor of proximate cause did not apply to this defense.

The plaintiffs contend that the giving of these instructions constituted prejudicial error because the defense of assumption of risk is not available to the defendants under the circumstances of this case. Neither the answers of the defendants nor the pre-trial order referred to this defense.

In general, 'the elements of the defense of assumption of risk are a person's knowledge and appreciation of the danger involved and his voluntary acceptance of the risk.' Prescott v. Ralph's Grocery Co., 42 Cal.2d 158, 162, 265 P.2d 904, 906. 'Where the facts are such that the plaintiff must have had knowledge of the hazard, the situation is equivalent to actual knowledge, and there may be an assumption of the risk, but where it merely appears that he should or could have discovered the danger by the exercise of ordinary care, the defense is contributory negligence and not assumption of risk.' Prescott v. Ralph's Grocery Co., 42 Cal.2d 158, 162, 265 P.2d 904, 906. The risk assumed may arise out of a dangerous condition created by the negligence of the defendant. Prescott v. Ralph's Grocery Co., 42 Cal.2d 158, 162, 265 P.2d 904; Rogers v. Los Angeles Transit Lines, 45 Cal.2d 414, 419, 289 P.2d 226.

The defendants claim that the defense was available to them under testimony which, if accepted by the jury, would have established that the decedent stepped out of his automobile onto the main-traveled portion of a transcontinent highway, in the night time, when traffic was heavy, after being warned by his wife not to open the hood of the car, which opened only from the side, and he nevertheless proceeded to walk toward the front of the automobile, turning his back to oncoming traffic; that it was dangerous to walk upon such a highway under these circumstances; and that the decedent knew or must have known of this danger.

The plaintiffs contend that the only dangerous condition material to the defense of assumption of risk arose out of the alleged negligent driving of the defendant George Malinoff, and that there was no evidence from which the jury could have concluded that the decedent knew or must have known of that dangerous condition. This contention must be sustained. Under the circumstances of this case, the only dangerous condition material to the issue of defendants' liability was a dangerous condition attributable to negligence of the defendant driver; if he was not negligent, although a dangerous condition existed, judgment should have been for the defendants; but if his negligence caused a dangerous condition resulting in Hidden's death, judgment in favor of the defendants under the defense of assumption of risk would have been proper only if the decedent knew or must have known of this negligently created dangerous condition. The instructions in question pointedly referred to 'dangerous conduct', and to danger existing in 'the conduct or condition of another' or in the 'use or operation of property' which, in this case, readily could be understood to apply to a dangerous condition created by the conduct of the defendant George Malinoff. There is no evidence to support a finding that the decedent knew or must have known of a dangerous condition created by the negligence of the defendant driver. The instructions in question should not have been given, and giving them constituted prejudicial error because they were misleading and confusing. Davenport v. Stratton, 24 Cal.2d 232, 234, 149 P.2d 4; Gold v. Hlivyak, 131 Cal.App.2d 39, 41, 280 P.2d 71. The confusion incident to an attempt to apply a rule of law to nonexistent evidence was compounded by that part of the instructions noting a distinction between the assumption of those risks which bar recovery...