Kovacs v. Sturgeon
| Citation | 274 Cal.App.2d 478,79 Cal.Rptr. 426 |
| Court | California Court of Appeals |
| Decision Date | 30 June 1969 |
| Parties | William A. KOVACS, Plaintiff and Appellant, v. Robert Everette STURGEON et al., Defendants and Respondents. Civ. 9232. |
Plaintiff, William Kovacs, appeals from a judgment entered upon a defense verdict in a personal injury action which arose out of a collision between a motor vehicle driven by defendant, Sturgeon, and plaintiff as a pedestrian.
The principal issue of this appeal is whether the trial court was justified, under the facts, in instructing on the doctrine of assumption of risk. We have determined it was error, serious and prejudicial, and therefore reversible to have instructed on this doctrine.
The accident happened on November 10, 1964 at about 10 p.m. when plaintiff was walking as a pedestrian eastbound on Foothill Boulevard in an unincorporated area. Foothill Boulevard at this point runs generally east and west, and plaintiff was walking on the right hand side of the street with his back to oncoming traffic. Plaintiff was wearing a jacket with dark trousers and oxblood shoes. The weather was misty and the ground was damp. For approximately 500 feet up to the point where the accident occurred, there was no sidewalk, only a dirt shoulder which was 'wider' than five or six feet. At that point, Foothill consisted of two eastbound lanes bounded by a 24 inch macadam shoulder and the dirt shoulder.
Plaintiff testified 1 he was walking about 30 inches off the blacktop prior to the impact and observed 25 to 30 cars pass him, of which 5 or 6 cars were in the number two or more southerly lane; he was struck while on the east driveway of a trailer park; the area was somewhat lighted, there being two lights on the first entrance of the driveway and two lights on the second entrance of the driveway; he saw and heard nothing before he was hit. The two lights were on pillars some distance back from Foothill Boulevard and used sixty watt bulbs. The park driveway was of a macadam or asphalt surface.
After plaintiff was put in the ambulance he was alternately conscious and semi-conscious and unconscious during the trip to the hospital. He was also in a state of shock. During the trip to the hospital, however, he became semi-conscious and told the attendant that he was hit while walking in the dirt. Plaintiff remembers nothing of the events after he was struck until he was in the hospital for a considerable period of time.
Defendant Sturgeon, who was seventeen years of age at the time of the accident, testified that on the night in question he was out driving his 1957 Chevrolet with his girl friend. His car was in good operating condition, except for the fact that the right windshield wiper had stopped functioning that same evening as he was driving to his girl friend's house to pick her up. At the time of the impact, he was traveling between 35 and 40 miles per hour and was headed eastward on Foothill Boulevard. It was wet outside, but he did not have his windshield wipers on and it was not raining, misty or cloudy. When he was in the number two lane opposite the trailer park, he felt a thump. He did not see what he had struck until after the accident, at the time of the impact he was looking straight ahead, and his left wheel was three or four inches from the line that divides the two eastbound lanes of traffic.
Defendant Sturgeon's girl friend testified that at the time of impact, defendant's car was on the road. This witness testified that although she was looking straight ahead, she did not see the man who was hit by the car.
One of the investigating officers called by the defense testified that after the accident he examined plaintiff's shoes and observed the left shoe had scrape marks on the bottom of the sole and the right shoe had mud on the bottom of the sole. The scrape marks were described as grooves cut into the leather of the sole extending from the tip of the shoe back several inches and were of the type that would be cut by the asphalt or cement road surface.
Another officer testified that he responded to a call concerning the accident, but when he arrived the plaintiff had been removed by the ambulance. His investigation consisted of searching the area for physical evidence. He examined both the dirt shoulder, which was damp, and the paved portion of the road, but found no tire marks or skid marks. Defendant Sturgeon's testimony was that he did not see plaintiff before the accident.
Plaintiff brought this action against Robert Sturgeon, his mother and stepfather, Mr. and Mrs. Spring, and Bill Bader Chevrolet (hereafter Bader). The liability of defendant Sturgeon was predicated upon alleged negligence. The liability of defendant Bader was predicated upon the fact that it, being a dealership, failed to comply with Vehicle Code, § 5901, in that it never filed with the Department of Motor Vehicles a notice of sale of the subject vehicle involved in the accident and hence it was statutorily liable as an owner. The jury brought in a verdict in favor of the defendants. From the judgment entered on the verdict, plaintiff has appealed.
The question of whether the giving of the assumption of risk instruction was prejudicial error requiring a reversal of the judgment is answered by Vierra v. Fifth Avenue Rental Service, 60 Cal.2d 266, 32 Cal.Rptr. 193, 383 P.2d 777, and authorities cited therein. The Supreme Court succinctly states the application of the doctrine of assumption of risk at p. 271, 32 Cal.Rptr. at p. 196, 383 P.2d at p. 780:
Assumption of risk is an affirmative defense requiring the party who asserts it to assume the burden of proof. The evidence reflects the defendants did not carry their burden of proof as required by Vierra, supra, and cases therein cited. Under the evidence in this case, it was error prejudicially proportioned, for the trial court to give an instruction on assumption of risk.
There was no evidence at the trial of this case which would allow for an application of Vehicle Code, § 21956. 2
Defendants presented evidence which reflected that the accident occurred outside of a business or residence district. Defendants presented no evidence as to whether the dirt shoulder plaintiff was walking upon was part of the 'highway, improved, designed, or ordinarily used for vehicular travel.' A pedestrian may walk on the right side of a highway if he is outside the limits of the roadway (Gioldi v. Sartorio, 119 Cal.App.2d 198, 200, 259 P.2d 62; Lesser v. McCullough, 90 Cal.App.2d 586, 589, 590, 203 P.2d 832; Summers v. Dominguez, 29 Cal.App.2d 308, 311--312, 84 P.2d 237) and since the question as to whether the shoulder of the road is a part of the 'roadway' is a factual question for the trier of fact (Fry v. Young, 267 A.C.A. 373, 382, 73 Cal.Rptr. 62; Summers v. Dominguez, Supra, 29 Cal.App.2d p. 312, 84 P.2d 237) we cannot, as seemingly contended for, hold plaintiff's conduct contributorily negligent as a matter of law. Under the instructions, the jury could have found no contributory negligence but assumption of risk. That being so, the instructions on that doctrine were prejudicial. (Vierra v. Fifth Avenue Rental Service, Supra, 60 Cal.2d 266, 275, 32 Cal.Rptr. 193, 383 P.2d 777.) As stated in Vierra at p. 271, 32 Cal.Rptr. at p. 196, 383 P.2d at p. 780:
The trier of the fact could find plaintiff was contributorily negligent but this possibility does not force a legal conclusion that the giving of the instruction on the doctrine of assumption of risk was not prejudicial requiring a reversal.
Plaintiff's theory of Bader's liability is premised upon Bader's failure to comply with section 5901 of the Vehicle Code.
Sometime about the middle of October, Mr. and Mrs. Larson owned the 1957 Chevrolet which later came into the possession of defendants Sturgeon and his mother, Mrs. Spring. Mr. and Mrs. Larson, for a value of $300, traded in the 1957 car for a newer model car at Bader's and paid the difference in cash. The Larsons were given possession of the new model car. The Larsons delivered the 'pink slip' on the 1957 car to Bader when they purchased the newer model. There is no dispute that the Larson transaction was with Bader rather than any one salesman or representative of Bader's. The papers representing their purchase of the new car were on Bader forms.
At the time of the Larson transaction, a vehicle purchase order form was prepared and signed by Mr. Larson, and in the space 'Salesman' the name 'Verne' appears together with the name 'Pope.' This signed form admitted into evidence was a copy of the original. On the form it is stated a 1957 Chevrolet was traded in on the new car for a...
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