Hill v. Ralph
| Decision Date | 27 April 1953 |
| Citation | 256 P.2d 48,117 Cal.App.2d 434 |
| Court | California Court of Appeals Court of Appeals |
| Parties | HILL et al. v. RALPH et al. Civ. 4619. |
Mack, Bianco & King, Bakersfield, for appellants.
Johnston, Baker & Palmer, Bakersfield, for respondents.
Plaintiffs and appellants, as heirs at law of Johnny Roy Hill, deceased, brought this action against defendants and respondents for damages alleged to be due them by reason of the death of deceased as a result of claimed negligence on the part of defendants arising out of an automobile accident. A trial by jury resulted in a judgment for defendants.
The sole question raised is the claimed prejudicial error of the court in refusing to give, at plaintiffs' request, an instruction to the effect that the law presumes that the deceased, in his conduct at the time and immediately preceding the accident, was exercising ordinary care and obeying the law. It was offered in the language of B.A.J.I. No. 135, Alt., Supplement. In support of the claimed error they cite such cases as Smellie v. Southern Pacific Company, 212 Cal. 540, 299 P. 529; Carlton v. Pacific Coast Gasoline Co., 110 Cal.App.2d 177, 242 P.2d 391; Westberg v. Willde, 14 Cal.2d 360, 367, 94 P.2d 590; and Kelley v. City and County of San Francisco, 58 Cal.App.2d 872, 137 P.2d 719.
It is defendants' position that since plaintiffs produced a witness who testified as to the facts of the accident and the actions of the deceased, it was not prejudicial error for the court to refuse the proffered instruction.
The deceased was riding with one Sinner in a pick-up truck. Sinner was driving. The men had been on an errand hauling accumulated junk from Bakersfield, driving easterly to the dump. They decided to drive farther eastward on a highway following generally the course of the Kern River. On the way they changed their minds and decided to return to Bakersfield. Sinner pulled the truck off to his right side of the road, came to a stop, and then turned to his left, making a 'U' turn in low gear on the highway, across double white lines in the center thereof. As the rear wheels of his truck were about to pass over the white lines an Oldsmobile sedan driven by defendant Richard Ralph, proceeding in a westerly direction, ran into and side-swiped the truck after he had applied his brakes and 'fishtailed' the sedan. The right side of the sedan collided with the right side of the pick-up truck. The sedan skidded its tires for a distance of about 150 feet.
Ralph testified that when he first saw the truck it was about 200 to 250 feet from him and moving very slowly making the 'U' turn; that he immediately applied his brakes and sounded his horn but the pick-up truck continued turning in his pathway. The evidence indicates he might have been traveling somewhere between 50 and 70 miles per hour. Hill was killed. Many witnesses were called by plaintiff showing the nature of the terrain and some obstruction of the view by intervention of a brushcovered sloped bank to the south of the highway. The testimony is, however, that there was a distance of about 365 feet east of the point of impact wherein the view was not obstructed.
Plaintiffs called Sinner, the driver of the truck, as their witness. He testified briefly in reference to the conduct of the deceased Hill just prior to and at the time of the accident. His testimony is that he saw no vehicle approaching him within 300 to 400 feet before he started to turn; that Hill was seated beside him and they were carrying on a conversation; that 'evidently' Hill was looking straight ahead 'because he told me * * * look out, they are going to hit us'; that he heard the squeal of tires and Hill was knocked to the floor of the truck unconscious. Sinner then testified he did plead guilty to a violation of section 544 of the Vehicle Code in making an illegal turn. No other evidence was produced as to the conduct of deceased.
The evidence, if any, which could support a finding of contributory negligence on the part of the deceased, is only slight. The court refused proffered instructions to the jury pertaining to claimed joint venture between deceased and Sinner on the ground there was not sufficient evidence to support them. No error is claimed in this respect. Whether the deceased was looking ahead and watching for traffic at the time Sinner started to turn the truck in the highway was not established by any direct evidence. Sinner's statement that the deceased was looking straight ahead at the time he was making the turn, was based upon a conclusion of the witness. There is some evidence that when Hill arrived at the hospital he was unconscious and that he did have some odor of intoxicating liquor on his breath. It does not appear to us that this evidence was such as would compel the conclusion that the deceased was guilty of contributory negligence. The evidence thus produced by plaintiff would not be wholly irreconcilable with the so-called presumption of due care.
In Westberg v. Willde, supra, 14 Cal.2d at page 367, 94 P.2d at page 594, the court said:
'* * * where the acts and conduct of a deceased person are the subject of inquiry, and the testimony respecting such acts and conduct necessarily must be produced by witnesses other than the deceased, unless such testimony meets the requirement of the rule in the Mar Shee case, and other cases decided by this court following the Mar Shee case, an instruction that the deceased is presumed to have exercised ordinary care of his own concerns is not only proper but this court in an unbroken line of decisions, has sustained the giving of such an instruction.'
The question then is whether the testimony in the instant case meets the requirements of the rule in the Mar Shee case, infra, and other cases decided by the Supreme Court following that case. In the Mar Shee case, Mar Shee v. Maryland Assurance Corporation, 190 Cal. 1, 210 P. 269, 273, witnesses testified on behalf of plaintiff regarding the facts and circumstances immediately preceding the shooting which indicated murder. Their testimony was uncontradicted. Plaintiffs there relied on the presumption 'that a person is innocent of crime'. The court held that from the facts thus proved by him, being wholly irreconcilable with the presumption of innocence, the presumption was dispelled thereby, and no evidence would then remain to support the finding that the insured was not murdered. It then held, quoting from syllabus that 'A fact is proved as against a party when it is established by the uncontradicted testimony of the party himself or of his witnesses, under circumstances which afford no indication that the testimony is the product of mistake or inadvertence, and when the fact so proved is wholly irreconcilable with the presumption sought to be invoked, the latter is dispelled and disappears from the case.'
Referring to the Smellie case, then, we find the conclusion that the presumption continued in plaintiff's favor as against the testimony of a defendant called by plaintiff as his witness under section 2055 of the Code of Civil Procedure. See Shirk v. Southern Pacific...
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...in his conduct at the time of and immediately preceding the accident, was exercising ordinary care and obeying the law. Hill v. Ralph, 117 Cal.App.2d 434, 256 P.2d 48. The contention is made by defendants, on this appeal, that from certain facts testified to by Hendrix, and by mathematical ......