Hooper v. Byron Jackson Pumps, Inc.

• Decision Date: 23 November 1960
• Citation: 9 Cal.Rptr. 273,186 Cal.App.2d 651
• Parties: Evelyn HOOPER, Plaintiff and Appellant, v. BYRON JACKSON PUMPS, INC., a Delaware Corporation, and William Frank Dunlap, Defendants and Respondents. Civ. 24521.
• Court: California Court of Appeals Court of Appeals

Page 273

9 Cal.Rptr. 273

186 Cal.App.2d 651

Evelyn HOOPER, Plaintiff and Appellant, v. BYRON JACKSON PUMPS, INC., a Delaware Corporation, and William Frank Dunlap, Defendants and Respondents.

Civ. 24521.

District Court of Appeal, Second District, Division 3, California.

Nov. 23, 1960.

Roger J. Pryor and Pauline Day Bakst, Compton, for appellant.

Dryden, Harrington, Horgan & Swartz, by Robert A. Klein, Los Angeles, for respondents.

BISHOP, Justice pro tem.

The issue on this appeal is quite simple: Did the trial court err in reading to the jury sections 525.1 and 551 of the Vehicle Code ¹? The facts of the case did not bring those sections into play, and we have concluded that, in this particular case, the error in giving the instructions was prejudicial.

Before dealing with the question of the instructions we dispose of respondents' contention that plaintiff's appeal should be dismissed because she failed to comply with Rule 4(b), Rules on Appeal. This was an action, tried before a jury, for damages resulting to the plaintiff personally when her automobile was bumped by one driven by the individual defendant in the business of the defendant corporation. The jury returned a verdict in defendants' favor, and a judgment that plaintiff take nothing followed. Plaintiff filed a notice of appeal from the adverse judgment, together with a request '* * * for a partial reporter's transcript of the proceedings on April 6, 7, 8 and 9, 1959 during the trial, which shall include everything except the medical testimony of plaintiff's doctors and the argument of counsel at the conclusion of the trial. A transcript of the proceedings wherein the jury requested additional instruction after beginning deliberation, is explicitly requested, including all the remarks of the Court and counsel.'

This request for a partial transcript was not accompanied by a statement of the points to be raised by the plaintiff on appeal, a condition imposed by Rule 4(b) on the right to order a partial transcript. The defendants objected to a partial transcript, without a statement of the points to be raised; their objection was sustained by the trial court; plaintiff filed, August 6, 1959, Points to be Raised on Appeal. Whether these points are sufficiently sharp to satisfy the purpose of the rule, we need not determine, for the defendants did not, as the respondents did in Haskins v. Crumley, 1957, 152 Cal.App.2d 64, 312 P.2d 276 and in Marshallan Mfg. Co. v. Brack, 1959, 172 Cal.App.2d 22, 342 P.2d 26, move for a dismissal of the appeal. The appellate court, in those cases, indicated that a dismissal would be ordered unless the appellant took advantage of the opportunity given, to file the missing statement. Now that the briefs are in, in this case, the defendants are more fully informed as to the points the plaintiff 'intends' to present than they would be if the statement required by the rule had been furnished. Beyond doubt the 300 page reporter's transcript is quite adequate fairly to present the points that are raised, without the doctor's testimony or the argument of counsel to the jury. If the latter would have been of any benefit to the defendants, they should have moved to obtain it within a reasonable time after the filing of plaintiff's opening brief, March 17, 1960. This is not a game in which a party is to be declared 'out' just because he fails to touch a base as he passes.

Turning now to the merits of the appeal we find very little inconsistencies between the stories told from the witness stand by the plaintiff and the defendant driver. The plaintiff was headed north on a boulevard, in the lane next to the double center line. The defendant's was the next car in the lane back of the plaintiff. They both stopped at an intersection in obedience to the red traffic light. When the green signal invited them to proceed, the plaintiff, seeing that a southbound car desired to make a left turn across plaintiff's lane, waited for it to do so, signaling for it to go ahead. This did not please the defendant--and we do not wonder, as the northbound cars on the right were advancing vancing so that the southbound car could not turn--and he honked repeatedly and vigorously at the plaintiff. She started forward; so did the defendant. The plaintiff again came to a stop but the defendant, his eyes on his rear view mirror, failed to stop in time, and bumped into plaintiff's car. There is some difference between the version of the plaintiff and that of the defendant respecting the events that followed her first, halting, movement ahead after the signal turned green, but none of significance of this appeal. We have related the facts as testified to by the defendant.

At the request of the defendants the trial court read to the jury the provisions of sections 525.1 and 551 of the Vehicle Code in effect in February, 1957, the time of plaintiff's accident. Section 525.1 of the Vehicle Code provided that: 'Notwithstanding the prima facie speed limits, upon all highways any vehicle proceeding in a direction at less than the normal speed of traffic in such direction at such time shall be driven in the right hand lane for traffic or as close as practicable to the right hand edge or curb, except when overtaking and passing another vehicle proceeding in the same direction or when preparing for a left turn at an intersection or into a private road or driveway.' Section 551 of the Vehicle Code, relating to vehicle turning left at an intersection provided: '(a) The driver of a vehicle within an intersection intending to turn to the left shall yield the right of way to any vehicle approaching from the...