Holman v. Viko

• Decision Date: 04 June 1958
• Citation: 161 Cal.App.2d 87,326 P.2d 551
• Court: California Court of Appeals Court of Appeals
• Parties: Florine HOLMAN, Plaintiff and Appellant, v. Paul E. VIKO, Defendant and Respondent. Giuseppe F. GOTTA, Plaintiff and Appellant, v. Paul E. VIKO, Defendant and Respondent. Civ. 22845, 22846.

Page 551

326 P.2d 551

161 Cal.App.2d 87

Florine HOLMAN, Plaintiff and Appellant, v. Paul E. VIKO, Defendant and Respondent.

Giuseppe F. GOTTA, Plaintiff and Appellant, v. Paul E. VIKO, Defendant and Respondent.

Civ. 22845, 22846.

District Court of Appeal, Second District, Division 2, California.

June 4, 1958.

Zeman, Hertzberg & Schekman, Los Angeles, for appellants.

Parker, Stanbury, Reese & McGee and Kenneth R. Garrett, Los Angeles, for respondent.

ASHBURN, Justice.

Appeals from judgments for defendant in two companion personal injury actions. The cases were tried together before a jury and plaintiffs base their appeals upon alleged errors in instructions. Counsel claim error (1) in instructing the jury that violation of § 80.39 of Los Angeles Municipal Code would constitute negligence per se, and (2) in refusing to give an instruction on the last clear chance doctrine. We have concluded that there was reversible error in the instruction based upon the municipal ordinance, but no error in refusal of a last clear chance instruction.

The accident occurred while plaintiffs were crossing Ninth Street in the city of Los Angeles near the middle of the block between Alvarado Street and Westlake Avenue, on November 13, 1955. They were not within any crosswalk. One of the plaintiffs and another witness testified that appellants were crossing the street diagonally. The court instructed the jury concerning the State law as follows: 'You are instructed that Section 562(a) and (b) of the Vehicle Code of the State of California on the date of the accident provided as follows: 'Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway.' 'The provisions of this section shall not relieve the driver of a vehicle from the duty to exercise due care for the safety of any pedestrian upon a roadway.'' Upon the ordinance provision it instructed in these words: 'You are instructed that Section 80.39 of the Los Angeles Municipal Code in effect on the date this accident occurred provided that: 'No pedestrian shall cross a roadway at any place other than by a route at right angles to the curb, or by the shortest route to the opposite curb except in a marked crosswalk.' * * * Conduct which is in violation of Section 80.39 of the Los Angeles Municipal Code and Section 671 of the Vehicle Code of the State of California, just read to you, constitutes, in itself, negligence. This means that if the evidence supports a finding, and you do find, that a person did so conduct himself, it requires a presumption that he was negligent. * * '

Appellants' contention is that the field is covered by the State law as expressed in the Vehicle Code and hence the ordinance is void. Section 458 of the code provides: 'The provisions of this division are applicable and uniform throughout the State and in all counties and municipalities therein and no local authority shall enact or enforce any ordinance on the matters covered by this division unless expressly authorized herein.' (Emphasis added.) In 1943 § 459.1 was added to the code. It reads: 'Local Regulation of Pedestrians and Turning Movements. (a) The provisions of Chapter 10 of Division 9 of this code regulating pedestrians shall not be deemed to prevent local authorities, by ordinance, from adopting ordinances prohibiting pedestrians from crossing roadways at other than crosswalks. (b) The provisions of Chapter 8 of Division 9 of this code regulating the turning of vehicles shall not be deemed to prevent local authorities, by ordinance, from prohibiting the making of any turning movement by any vehicle at any intersection or between any designated intersections.' ¹

Before the enactment of § 459.1 it became settled law that §§ 562 and 563, Vehicle Code, ² had preempted the field of regulation of the subject of crossing streets between intersections. In Pipoly v. Benson, 1942, 20 Cal.2d 366, 125 P.2d 482, 147 A.L.R. 515, the court dealt with § 80.38, Los Angeles Municipal Code, which prohibited crossing in a central traffic district or any business district other than by crosswalk. It was held that the regulation of traffic upon the streets of a city is not a municipal affair and that such an ordinance as § 80.38 is invalid because the field has been occupied by State legislation. At page 370 of 20 Cal.2d at page 485 of 125 P.2d the court said: 'Regardless of whether there is any actual grammatical conflit between an ordinance and a statute, the ordinance is invalid if it attempts to impose additional requirements in a field which is fully occupied by the statute. Thus, it has been held from an early date that an ordinance which is substantially identical with a state statute is invalid because it is an attempt to duplicate the prohibition of the statute.' At page 371 of 20 Cal.2d, at page 485 of 125 P.2d: 'Where the statute contains language indicating that the legislature did not intend its regulations to be exclusive, the general rule permitting additional supplementary local regulations has been applied. In re Iverson, supra, 199 Cal. 582, at page 588, 250 P. 681; Natural Milk Producers Ass'n of California v. City and County of San Francisco, 20 Cal.2d 101, 124 P.2d 25; In re Simmons, supra, 199 Cal. 590, at page 593, 250 P. 684. Conversely where the statute contains express provisions indicating that the legislature intends its regulations to be exclusive within a certain field, the courts have given effect to this intention.' After quoting § 458, Vehicle Code, the court said, 20 Cal.2d at page 372, 125 P.2d at page 486: 'The regulation of pedestrian traffic in its use of the public roadways, however, is not a matter concerning which express authorization has been given for local regulation.' And 20 Cal.2d at page 375, 125 P.2d at page 487: 'For the reasons set forth herein, we conclude that section 80.38 of the Municipal Code of Los Angeles must be held to be unconstitutional since it conflicts with the Vehicle Code by attempting to legislate upon a subject intended to be covered fully by an act of the legislature. The instruction given by the trial court which was based upon the provisions of the Los Angeles ordinance, therefore, was erroneous and since it conflicted with the instruction based upon the provisions of the Vehicle Code, the error requires a reversal of the judgment.' The court distinguished Quinn v. Rosenfeld, 15 Cal.2d 486, 102 P.2d 317, as follows: 'Defendants also rely upon our decision in Quinn v. Rosenfeld, supra, but the local ordinance there involved was not the basis for the decision. No instructions to a jury were involved in that case, and the decision concluded that since the ordinance made no attempt to prohibit the plaintiff's conduct, it was unnecessary to decide whether the ordinance was invalid on the ground that it related to a matter covered by division IX of the Vehicle Code. Quinn v. Rosenfeld, supra, 15 Cal.2d at page 490, 102 P.2d 317. The case was decided solely with reference to the provisions of the Vehicle Code and is not in conflict with our conclusions herein.' (20 Cal.2d at page 374, 125 P.2d at page 487.)

Fuentes v. Ling, 1942, 21 Cal.2d 59, 130 P.2d 121, makes the same holding as Pipoly, supra, with reference to an ordinance in similar terms.

Wilton v. Henkin, 1942, 52 Cal.App.2d 368, 126 P.2d 425. A local ordinance prohibited crossing in the business district except by crosswalk; it also prohibited crossing at any place except by a route at right angles to the curb or by the shortest route to the opposite curb. The court held that the first mentioned provision (like the one involved in the Pipoly case, supra) was void because the field was governed by the Vehicle Code. The opinion does not expressly rule upon validity of the prohibition of diagonal crossing.

Stricklin v. Rosemeyer, 1942, 52 Cal.App.2d 558, 126 P.2d 665, dealt with an ordinance providing: "It shall be unlawful for any person to be in any roadway other than a safety zone or cross-walk; provided that this provision shall not be construed to prevent the necessary use of a roadway by a pedestrian." (52 Cal.App.2d at page 561, 126 P.2d at page 666.) This was held to be invalid under the doctrine of the Pipoly case, supra.

Ryan v. San Diego Elec. Ry. Co., 1942, 52 Cal.App.2d 460, 126 P.2d 401, dealt with an ordinance substantially the same as the one declared void in Pipoly and of course made the same ruling.

Nosbonne v. Brill, 1942, 53 Cal.App.2d 436, 128 P.2d 57, held a similar ordinance to be invalid.

In view of the declaration of § 458, quoted supra, the aggregate effect of the above cited cases is the establishment of a rule that the Vehicle Code has preempted the field of regulation of crossing a roadway at or between intersections except to the extent that local legislation is 'expressly authorized' by the Vehicle Code.

Following the Pipoly and other cases, supra, the legislature passed in 1943 section 459.1. It expressly permits local regulation which (1) prohibits pedestrians from crossing roadways except at crosswalks, and (2) as amended in 1947 prohibiting any turning movement by any vehicle between designated intersections. The legislature is presumed to have been familiar with existing statutes and court rulings. In re Estate of Simpson, 43 Cal.2d 594, 600, 275 P.2d 467, 47 A.L.R.2d 991; Buckley v. Chadwick, 45 Cal.2d 183, 193, 288 P.2d 12, 289 P.2d 242; Freeman v. Jergins, 125 Cal.App.2d 536, 552-553, 271 P.2d 210. It specifically authorized local ordinances wholly prohibiting crossing between intersections by pedestrians. Section 562 impliedly authorizes crossing between intersections subject only to an obligation to yield the right-of-way to approaching vehicles. Hatzakorzian v. Rucker-Fuller Desk Co., 197 Cal. 82, 95, 239 P. 709, 41 A.L.R. 1027; Broedlow v. LeGros, 88 Cal.App. 671, 676, 263 P. 1027; Jacoby v....