Hughes v. MacDonald

• Decision Date: 18 May 1955
• Citation: 133 Cal.App.2d 74,283 P.2d 360
• Court: California Court of Appeals
• Parties: Amanda HIGHES, an Infant, by Mortimer Hughes, her guardian ad litem, and Mortimer Hughes, Plaintiffs and Appellants, v. Frank Melvin MacDONALD, Universal Utilities Corporation, a corporation, Defendants and Respondents. Civ. 16245.

Page 360

283 P.2d 360

133 Cal.App.2d 74

Amanda HIGHES, an Infant, by Mortimer Hughes, her guardian ad litem, and Mortimer Hughes, Plaintiffs and Appellants, v. Frank Melvin MacDONALD, Universal Utilities Corporation, a corporation, Defendants and Respondents.

Civ. 16245.

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

May 18, 1955.

Rehearing Denied June 17, 1955.

Hearing Denied July 13, 1955.

James Martin MacInnis, Nicholas Alaga, Harry P. Glassman, San Francisco, for appellants.

Keith, Creede & Sedgwick, San Francisco, for respondents.

NOURSE, Presiding Justice.

Amanda Hughes, an infant about one and a half years old, brought suit through her father as guardian ad litem for injuries suffered when she came in contact with defendant MacDonald's automobile. Her father, joining in the action, sued for expenses incurred for her treatment. They appeal from a judgment entered on an adverse verdict.

On the morning of the accident MacDonald was driving his car in the course of his employment as a salesman and collector for the other defendant east along the south side of Montana Street, where he had to make a collection from Mrs. Lengyel at No. 71. When in passing he saw her on a lawn to the west of her home near No. 75, the Hughes' home, he made a U-turn at the corner, came back and crossing over from the north side to the south side of the street parked his car in front of the Hughes' home with the left front wheel against the curb and headed against the direction of the traffic. Mrs. Hughes was then with her back to the street cutting grass on a little lawn before her home and according to her Amanda was sitting next to her putting grass into a cardboard box. Three more little children, one of Mrs. Hughes and two of Mrs. Lengyel were playing on the lawns and the sidewalk not directly at the curb. Mrs. Lengyel went to the car and told MacDonald to come back for the collection the next week. While she was speaking to him her youngest boy came to the car and, just when MacDonald was going to start, began tinkering with the lid of the gas cap in back on the rear fender. Mrs. Lengyel, looking to the rear of the car, told the boy to get away because the car was going to start. The boy then ran back and according to MacDonald's testimony Mrs. Lengyel also backed away from the car making a motion back with her arms by her side, which signified to him that the children were clear. He saw children behind her arms, not in front of her and thought he saw the same number of children he had seen when he came. Mrs. Lengyel testified that she did not recall but that she could have made such a motion. MacDonald looked in his rear view mirror and seeing nothing, backed his car about two feet to clear the curb and then moved forward very slowly. After he had moved forward five or six feet he heard an unusual sound. He stopped his car and called to the women, who were back at work on the lawn again. Mrs. Lengyel turned and called out that it was Amanda. She picked up Amanda about five feet out from the sidewalk. Mrs. Hughes had not missed Amanda, she thought the child was next to her. According to her only one or at most two minutes elapsed between MacDonald's arrival and Mrs. Lengyel's exclamation. When MacDonald examined his car he found a slight smudge on the back of the right rear fender towards the bumper. The police report of the accident says that the child 'somehow became entangled with the right rear fender or bumper'. MacDonald testified that after the accident Mrs. Hughes told him twice that same day that he should not be upset, that it was not his fault.

Appellants contend that the verdict is not supported by the evidence, because MacDonald was negligent as a matter of law, having violated Section 543 of the Vehicle Code, which reads: 'No person shall start a vehicle stopped, standing or parked on a highway nor shall any person back a vehicle on a highway unless and until such movement can be made with reasonable safety' and moreover by driving to the left of the road and parking headed against the direction of the traffic in violation of Section 525 Vehicle Code and Section 54 of the Traffic Code of San Francisco. These contentions are without merit.

The fact alone that an accident happened does not necessarily prove violation of Section 543 Vehicle Code. With respect to Section 530 of the same code--which requires for overtaking over the left side of the road, among other things, that said left side be free of oncoming traffic for a sufficient distance ahead to permit such overtaking to be completed 'without interfering with the safe operation of any vehicle approaching from the opposite direction or any vehicle overtaken'--it was said in M & M Livestock Transport Co. v. California Auto Transport Co., 43 Cal.2d 847, 850, 279 P.2d 13, 15, that said section 'does not mean that when passing the conditions must be such that the passer guarantees he may safely pass or that he has necessarily violated the section by failing to complete the maneuver without accident, that is, the question is not entirely one of hindsight. Essentially the passer is required to act in a reasonable and prudent manner under the circumstances'. Whether MacDonald acted in such manner under the circumstances of our case remained for the jury. Smith v. Harger, 84 Cal.App.2d 361, 368-369, 191 P.2d 25; Hart v. Briskman, 110 Cal.App.2d 194, 201-202, 242 P.2d 341. Considering among all the circumstances the presence at the car of the mother of some of the children, the warning given by her and the motion she made, the jury could conclude that MacDonald acted as a reasonably prudent man and did not violate Section 543. Even if it were held that Section 543 contains an element of right of way, not clearly expressed, to the effect that a car starting or backing on a highway must yield the right of way to vehicles and persons moving normally on or across said highway, then still the question whether the failure to yield the right of way was excused under the special circumstances of the case was for the jury and the stated facts would support the finding of an excuse. Taylor v. Jackson, 123 Cal.App.2d 199, 266 P.2d 605.

The undeniable violation of Section 525 of the Vehicle Code and Section 54 of the San Francisco Traffic Code does not cause liability without proof that defendant's violation of the statute or ordinance proximately caused the injury. Satterlee v. Orange Glenn School Dist., 29 Cal.2d 581, 588, 177 P.2d 279, and the facts stated certainly support a conclusion that the fact that the car was parked headed against the direction of the traffic did not proximately cause the injury to the child.

Appellants next urge that instructions given by the court which defined the duty of care of pedestrians, of the parties, or of persons in general were erroneous if the jury would apply them to the one and a half year old plaintiff, too young to owe any duty of care. This is correct. Some of said statements were according to their terms necessarily applicable to the child. It is said that 'a pedestrian * * * at all times * * * must be vigilant * * *.' When the child was the only pedestrian involved, and further that 'Plaintiffs and the Defendant MacDonald were both chargeable with the exercise of reasonable care' when of the two plaintiffs the child was one. Respondent urges that the above errors were cured by the following instruction also given: '* * * I instruct you that the law conclusively presumes that a child of the age of the plaintiff child, Amanda Hughes, namely, one year and six months, is incapable of contributory negligence. Hence you need consider the...