Irvin v. Padelford

• Decision Date: 17 August 1954
• Citation: 273 P.2d 539,127 CAl.App.2d 135
• Court: California Court of Appeals Court of Appeals
• Parties: IRVIN v. PADELFORD. IRVIN v. CITY OF POMONA. Civ. 19995, 19941.

Page 539

273 P.2d 539

127 Cal.App.2d 135

IRVIN v. PADELFORD.

IRVIN v. CITY OF POMONA.

Civ. 19995, 19941.

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

Aug. 17, 1954.

Early, Maslach, Foran & Tyler and John Francis Foran, Los Angeles, for appellant Arthur James Padelford.

Hulen C. Callaway and Arlo E. Rickett, Jr., Pomona, for appellant City of Pomona.

Victor C. Rose and Alfred M. Klein, Los Angeles, for respondent.

McCOMB, Justice.

Plaintiff Irvin filed two actions, one against Arthur James Padelford, and the other against the City of Pomona, to recover damages for injuries resulting from an automobile accident. The cases were consolidated for trial before a jury and resulted in a judgment in favor of plaintiff in the amount of $20,000 against both defendants. Each of the defendants appeals from the judgment.

Facts: ¹ On October 12, 1949, Second Street and Park Avenue were intersecting streets, each approximately 48 feet wide, in the City of Pomona. Park Avenue runs in a northerly and southerly direction and Second Street runs easterly and westerly. Second Street was an arterial highway. However, on October 12, 1949, at the time of the accident involved in this appeal, the stop sign and street light pole to which it was attached had been taken down by the city employees for the purpose of repairing the wiring. The pole and sign had been down for two days prior to the accident and were not replaced until the afternoon of October 12, long after the accident had occurred.

On the morning of October 12, plaintiff was driving her automobile east on Second Street. She was on her way to work and was due there at 6:00 a. m. At the same time defendant Padelford was driving his automobile, to which was attached an eight foot long trailer, north on Park Avenue. Due to the presence of a large building on the southwest corner, the intersection was 'blind' for both drivers, neither being able to see 100 feet down the intersecting street during the last 100 feet of his or her approach.

When plaintiff arrived at the intersection the sun was up, visibility was good, and the street was dry. The brakes and tires on plaintiff's automobile were in good condition. She was driving at a speed of between 20 and 25 miles per hour. When the front of her automobile reached the west edge of Park Avenue and she entered the intersection, she first saw the north bound car driven by defendant Padelford one and a half to two car lengths south of the south edge of Second Street, moving at a speed which she estimated to be faster than she was traveling.

Thereafter the automobiles collided, resulting in injury to plaintiff, for whom judgment was rendered.

Appeal of Defendant Padelford

Defendant Padelford contends that the judgment should be reversed as to him for these reasons:

(1) There is no substantial evidence of negligence on his part.

This contention is devoid of merit. Where an automobile has actually entered an intersection before another approaches, the driver of the first automobile has the right to assume that he will be given the right of way and be permitted to pass through the intersection without danger of collision, and to assume that the driver of the other automobile will obey the law, slow down and yield the right of way in order to prevent a collision. (Couchman v. Snelling, 111 Cal.App. 192, 195, 295 P. 845; Ebert v. Tide Water Associated Oil Co., 54 Cal.App.2d 497, 501, 129 P.2d 135.)

In the instant case the jury impliedly found, supported by substantial evidence, that plaintiff's car entered the intersection first and that thereafter defendant Padelford's car entered the intersection which act was the proximate cause of the accident. It is obvious that thus there was substantial evidence to support the judgment against such defendant.

(2) The trial cort erred in refusing to grant defendant Padelford's motion for a new trial because of the failure of a material witness to appear at the trial.

This proposition is not sound. The testimony of Charles Robert Edmonds, defendant's witness who did not appear at the trial, was merely cumulative of evidence received during the trial. Hence the denial of a motion for a new trial on the ground of newly discovered evidence will not be disturbed on appeal. (Wilson v. Kopp, 114 Cal.App.2d 198, 206, 250 P.2d 166.)

(3) The trial court erred in refusing to grant a new trial on the ground of irregularity of proceedings of the jury.

This proposition is likewise untenable. Defendant Padelford urges that a new trial should have been granted because one of the members of the jury, Mrs. McManus, failed to answer in the affirmative on voir dire examination when asked if any member of her immediate family had been involved in any accidents that resulted in personal injuries.

It appears from the affidavit of one of defendant's attorneys that Mrs. McManus stated after the trial that her daughter had on one occasion fallen out of an automobile, and that she did not believe that plaintiff was necessarily driving at a high rate of speed in causing one of the occupants of defendant Padelford's car to be thrown from it.

The verdict of the jury may not be impeached by the affidavit of one of the jurors except where the affidavit shows that the verdict was reached by a resort to the determination of chance within the meaning of subdivision 2, section 657 of the Code of Civil Procedure. (George v. City of Los Angeles, 51 Cal.App.2d 311, 320, 124 P.2d 872.)

Therefore in the instant case in the absence of Mrs. McManus' testimony, which was not admissible in evidence, there was no testimony before the trial court to support defendant's claim.

There was another reason the trial court properly denied the motion for a new trial. There was no showing of prejudice resulting to defendant Padelford from Mrs. McManus' answer on her voir dire examination. This is a prerequisite to the granting of a new trial predicated upon the alleged misconduct of a juror. (George v. City of Los Angeles, supra, 51 Cal.App.2d at page 321, 124 P.2d 872.)

In the present case it appears that the jury was polled after the verdict in favor of plaintiff and the poll showed ten 'yes' and two 'no' votes. It is therefore evident that since only nine 'yes' votes were necessary to secure a verdict for plaintiff, even though Mrs. McManus had voted the other way the verdict would still have been for plaintiff. Hence no prejudice resulted from any irregularity arising out of her voir dire examination.

Appeal of Defendant City of Pomona

Defendant City of Pomona urges the following propositions:

(1) There was not sufficient evidence to prove a dangerous or defective condition of property of defendant city which was the proximate cause of the accident.

This proposition is not tenable. Defendant city argues that the lack of the stop signal was not a proximate cause of the accident and that there was no dangerous or defective condition of the city property.

A defective or dangerous condition can be created by the use or general plan of operation of government-operated property as well as by a structural defect. In Bauman v. City & County of San Francisco, 42 Cal.App.2d 144, 153, 108 P.2d 989, 994, the court said:

'It has frequently been said that no hard or fast rule can be laid down as to what constitutes a dangerous or defective condition, but that each case must depend upon its own set of facts. (Citing cases.) It is also well-settled that as a general rule it is a question of fact for the jury to determine whether a given set of facts or circumstances creates a dangerous or defective condition. (Citing cases.)

'Applying these rules to the facts of the instant case, it is clear that this court cannot hold as a matter of law that the implied finding that the playground was dangerous or defective does not find substantial support in the record.'

It was held in such case that the jury was justified in finding negligence for the following reasons: (a) the City was negligent in permitting the playing in sandboxes which were in dangerous proximity to playing hardball; (b) there was a failure to erect some barrier between the children playing in the sandboxes, and the playing of hardball; (c) there was a failure to properly supervise the playground by preventing the playing of hardball games in dangerously close proximity to the sandboxes where the small children played.

It was thereafter stated, 42 Cal.App.2d at page 153, 108 P.2d at page 995: 'There can be no doubt that a dangerous or defective condition can be created by the use or general plan of operation of government operated property, as well as by a structural defect. (Huff v. Compton City Grammar School Dist., 92 Cal.App. 44, 267 P. 918.) The very fact that plaintiff was injured while playing in the sandbox, and while using the playground in the usual and ordinary way, is some evidence that a dangerous and defective condition existed. (Hook v. City of Sacramento, 118 Cal.App. 547, 5 P.2d 643; Adams v. Southern Pac. Co., 4 Cal.2d 731, 53 P.2d 121.)'

To the same effect are Harper v. Vallejo Housing Authority, 104 Cal.App.2d 621, 232 P.2d 262; Huff v. City of Compton Grammar School Dist., 92 Cal.App. 44, 267 P. 918; and Wexler v. City of Los Angeles, 110 Cal.App.2d 740, 243 P.2d 868.

The jury impliedly found that plaintiff was not contributorily negligent. Also, the jury were justified in their implied finding that a proximate cause of the accident was the failure of defendant city to maintain a stop sign at the intersection. This, of course, was a question of fact for the jury to determine from the evidence. (Bauman v. City & County of San Francisco, supra, 42 Cal.App.2d at page 154, 108 P.2d 989.)

It is likewise established that merely because another was negligent such negligence does not relieve the city from liability if its negligence is a proximate and concurring case of the injury. (Bauman) v. City & County of San Francisco, supra...