Hilts v. Solano County

• Decision Date: 26 August 1968
• Court: California Court of Appeals Court of Appeals
• Parties: Leonora HILTS, David Hilts and James B. Hilts, Plaintiffs and Respondents, v. COUNTY OF SOLAND, Vernon L. Wallis and Valley Livestock, Defendants and Appellants. Civ. 24266.

Page 275

71 Cal.Rptr. 275

265 Cal.App.2d 161

Leonora HILTS, David Hilts and James B. Hilts, Plaintiffs and Respondents, v. COUNTY OF SOLAND, Vernon L. Wallis and Valley Livestock, Defendants and Appellants.

Civ. 24266.

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

Aug. 26, 1968.

Hearing Denied Oct. 23, 1968.

McGregor, Bullen & McKone, Sacramento, for appellant County of solano.

Rust & Hoffman, Sacramento, Ellis J. Horvitz, Los Angeles, and David A. Tallant, Sacramento, for appellants Valley Livestock Co. and Vernon Leon Wallis.

Edwin L. Z'Berg, Sacramento, for respondents.

MOLINARI, Presiding Justice.

This is a wrongful death action brought by the widow and two adult sons of Julius Benson Hilts, who was fatally injured when the vehicle that he was driving collided with a truck driven by defendant Vernon L. Wallis and owned by defendant Valley Livestock Co. (hereinafter referred to as 'Valley'). Plaintiffs alleged negligence of Wallis and Valley and also alleged against the County of Solano (hereinafter referred to as 'County') that the intersection in which the accident occurred was in a dangerous condition. The jury rendered its verdict in favor of Wallis and Valley but against County in the sum of $37,500. The court denied County's motions for a new trial and for judgment notwithstanding the verdict, and County appeals from the judgment against it and from the order denying the motion for judgment notwithstanding the verdict. The court granted plaintiffs' motion for a new trial as against Valley, and both Valley and Wallis appeal from that order. The order does not, however, mention Wallis, and there is therefore a question whether he may appeal from it.

County alleges numerous errors in the admission of evidence and the instructions, as well as claiming that as a matter of law it is immune from liability in this case under certain sections of the Government Code. ¹ Valley and Wallis contend that the overwhelming preponderance of credible evidence supports the verdict in their favor and hence the court abused its discretion in granting plaintiffs' motion for a new trial. Additionally, they argue that the order granting a new trial is insufficient under the doctrine of Mercer v. Perez, 68 A.C. 102, 65 Cal.Rptr. 315, 436 P.2d 315, and also that the final judgment in favor of Wallis precludes a new trial as to Valley. After stating the facts, we shall discuss the appeals of the defendants separately.

Facts

The collision, which was stipulated to have been the proximate cause of decedent's death, occurred on June 16, 1964, in the intersection of Midway and Bulkley Roads in Solano County, between a three-axle cattle truck and trailer rig driven by Wallis and owned by Valley and a panel truck driven by decedent. The cattle truck had been proceeding east on Midway and the panel truck had been moving north on Bulkley. Decedent was dead when California Highway Patrol Officer Blasingame arrived at the scene of the accident.

On the date of the accident the intersection of Midway and Bulkley formed a curve to the north and west; Bulkley jogged to the west so that its northern extension beyond the intersection was to the west of the southerly portion of the street. Midway was 20 feet wide west of the intersection and 16 feet wide east of it, while Bulkley was 20 feet wide south of the intersection, widened to 24 feet around the curve in the intersection, and then narrowed to 18 feet north of the intersection. There were broken white lines down the middle of Bulkley on both sides of the intersection and on Midway there were no markings east of the intersection and broken white lines west of the intersection, these lines becoming solid yellow lines near the intersection. The only control device in the intersection was a stop sign north of the intersection controlling southbound traffic on Bulkley. There were intersection warning signs west of the intersection on Midway and on both sides of the intersection on Bulkley. However, these signs did not depict the peculiar shape of the intersection. Further, there was a black and white directional sign on Bulkley 500 feet south of the intersection, this sign indicating that Sacramento was 22 miles straight ahead, Dixon was 7 miles to the left, and Yolano was one mile to the right. Next to this directional sign was a curve sign. The bulk of the traffic in the vicinity of the intersection traveled on Midway eastbound to Bulkley and then south on Bulkley; relatively few vehicles went straight through the intersection on Midway.

There were English walnut trees growing along the south edge of Midway and the east edge of Bulkley in and near the intersection. The testimony of witnesses differed somewhat as to the extent to which these trees affected visibility. Wallis testified that the trees interfered with his vision but that he could see traffic with difficulty at some point within 200 feet of the intersection. Ferguson, Assistant Deputy Director of Operations in the Department of Public Works for Solano County, testified that the trees permitted visibility of oncoming traffic for about 400 feet on either side of the intersection because the foliage of the trees starts about twelve to fourteen feet off the ground. He also testified that he had inspected and trimmed the trees at this intersection on January 31, 1964. Faustman, a consulting traffic engineer, testified that differences in elevation between the roadway grades and adjoining fields plus the presence of the trees caused some visibility obstruction around the intersection.

The speed limit for trucks on Midway (applicable to the Vehicle driven by Wallis) was 50 miles per hour. The limit for passenger vehicles on Bulkley (applicable to the panel truck driven by decedent) was 65 miles per hour.

Wallis testified that he had been through the intersection many times and knew that the bulk of traffic went south around the curve; that he did not see decedent's vehicle until it was coming into the intersection; and that the cab of his truck was in the intersection when he saw decedent's panel truck.

Officer Blasingame testified that the cattle truck's tachometer chart showed that it had been going a steady 52 miles per hour prior to the accident and that the needle suddenly dropped off 20 to 25 miles per hour, which Blasingame determined to be the point at which the truck had turned over. There were skid marks left by the truck beginning 33 feet west of the east edge of the intersection, or 15 feet west of the west edge of Bulkley. Blasigname thought that these marks were made by the driver wheels on the cab, which wheels are 20 feet behind the front of the truck. Also, Blasingame stated that there was a substantial distance of feet before the skids would become apparent and further that the reaction distance at 52 miles per hour is about 58 feet. The front of the truck, Blasingame concluded, was in the intersection when the skids began. Assuming that decedent's vehicle was proceeding at a speed of 50 to 55 miles per hour, Blasingame concluded from the location of the point of impact that the cattle truck must have entered the intersection first. ²

Wallis contradicted Blasingame's testimony that the skid marks were left by the driver wheels and testified that when he applied his brakes the rear wheels, which are located 45 feet behind the front ones, grabbed first.

Higby, a deaf mute who, at the scene of the accident, was driving about 500 yards behind Wallis, testified that he saw decedent's vehicle on Bulkley for a few minutes and that it was traveling about 50 to 55 miles per hour. He could not, however, see the vehicle for the last one and one-half blocks south of the intersection. He testified that both vehicles entered the intersection at the same time.

There was no testimony as to the manner in which decedent had been driving prior to the accident except for the testimony of Higby that he had been driving 50 to 55 miles per hour a block and a half south of the intersection (i.e., within the speed limit applicable to him). Mrs. Hilts testified that decedent was very familiar with the intersection.

Gordon Webster, who lived one and one-half blocks from the site of the accident, testified that he knew of at least a dozen accidents that had occurred in that intersection although he had not actually witnessed any of these accidents; that he had complained to Ferguson three or four times over a one-year period prior to the accident involved in the instant case; that he told Ferguson to put in a stop sign; that although the stop sign controlling southbound traffic was put in, it did not help; and that he told someone to put the sign on the south side of the intersection (controlling northbound traffic) instead. Ferguson testified that he recalled Webster complaining to him about the intersection at least twice but did not remember what they talked about with reference to stop signs, and further testified that he has no jurisdiction over signs. In 1965 (after the accident) Ferguson recommended that a stop sign be put in the intersection because of a barley crop obstructing visibility, and a stop sign was in fact put in for northbound traffic on Bulkley.

Faustman testified that the intersection as it existed in 1964 was potentially a hazardous intersection and constituted a trap for the motorist. He stated that visibility was obstructed due in part to differences in elevation between roadway grades and adjoining fields, and in part to the presence of the walnut trees; that the intersection should have been physically redesigned; and that some advance warning signs should have been erected. He estimated that it would cost less than $1,000 to straighten out one of the intersecting streets. Faustman also illustrated various ways of striping the intersection to make it safer with respect to the way that traffic meets at the curve. Finally, he testified that from the standpoint of maintenance,...