Kuehn v. Lowthian

• Citation: 124 Cal.App.2d 867,269 P.2d 666
• Court: California Court of Appeals
• Decision Date: 30 April 1954
• Parties: KUEHN v. LOWTHIAN et al. JAMES v. LOWTHIAN et al. Civ. 15682.

Page 666

269 P.2d 666

124 Cal.App.2d 867

KUEHN v. LOWTHIAN et al.

JAMES v. LOWTHIAN et al.

Civ. 15682.

District Court of Appeal, First District, Division 1, California.

April 30, 1954.

Rehearing Denied May 28, 1954.

Hearing Denied June 23, 1954.

Malovos, Mager, Newcomer & Chasuk, Kenneth R. Malovos and Herman J. Mager, San Jose, for appellants.

Campbell, Custer, Warburton & Britton, San Jose, W. R. Dunn, Burlingame, for respondents.

FINLEY, Justice pro tem.

These cases were consolidated for trial. The appeal is by both plaintiffs from judgments entered upon jury verdicts in favor of defendants. The notices of appeal also state that appeal is taken from the order made denying plaintiffs' motion for a new trial. There is no appeal from an order denying a motion for a new trial. Section 963, Code Civ.Proc. The order denying the motion is, however, reviewable upon appeal from the judgments. The appeals from this order are therefore dismissed.

The action grows out of a collision between an automobile driven by appellant Audrey James in which appellant Kathryn Kuehn was a passenger, and a truck and dolly loaded with long poles and driven by respondent Robert Lowthian. The collision took place on State Highway 1, near the point where it is intersected by East Garrison Road at Ford Ord. At that point State Highway 1 is four lanes in width with a dividing strip between the southbound and northbound lanes. Respondent Robert Lowthian was driving the truck and dolly, owned by respondent Harry Lowthian, in the outside or westerly lane, headed south. Following him was a similar truck and load. The Buick automobile driven by appellant Audrey James had followed the trucks for some distance prior to the widening of the highway from two to four lanes. She had passed the rear truck and was preparing to pass the one in front when it made, or started to make, a left-hand turn, preparatory to crossing the highway for entry into East Garrison Road, which intersected on the opposite side. A collision took place between the left front of the automobile and the rear end of the dolly at about the dividing line between the southbound lanes.

Two points are raised here by appellants. They are:

'1. The evidence is wholly insufficient to sustain the verdict of the jury and is contrary to law.'

'2. Grave prejudicial error resulted from the action of the trial court in its instructions to the jury.'

Since appellant Kathryn Kuehn was riding as a passenger in the automobile driven by appellant Audrey James, and since the verdicts were in favor of respondents and against appellant Kuehn as a passenger, as well as against appellant James as the driver, it is obvious that the verdicts were founded upon freedom from negligence on the part of respondent Robert Lowthian, and not upon a finding of contributory negligence on the part of appellant James.

In order for appellants' point No. 1 above and their argument to be well taken, it would necessarily mean that there is no substantial evidence in the record of lack of negligence on the part of respondents. It would mean, on the other hand, that the evidence not only indicates but actually establishes negligence on the part of respondent Robert Lowthian. It would mean that at the close of the evidence appellants were each entitled to a directed verdict or, after verdict by the jury to the contrary, they were entitled to judgment in their favor, notwithstanding the verdict.

A judgment founded upon the verdict of the jury will not be reversed on the ground of insufficiency of the evidence unless it can be held as a matter of law that, aided by every favorable inference, presumption and intendment, the evidence is patently inadequate to support the verdict. Huston v. Schohr, 63 Cal.App.2d 267, 146 P.2d 730; Freeman v. Nickerson, 77 Cal.App.2d 40, 174 P.2d 688; De Rosier v. Vierra, 109 Cal.App.2d 291, 240 P.2d 660; Dodds v. Stellar, 77 Cal.App.2d 411, 175 P.2d 607. If this point is now sound it should have been raised by a motion for a directed verdict or a motion for judgment notwithstanding the verdict. No such motions were made.

No useful purpose would be served by reviewing the evidence with particularity. Suffice it to say that we have read the record. In reviewing that record we find no support for appellants' contention that respondents' version of the collision is physically impossible. There is in the record ample evidence of a credible nature to support the verdicts of the jury.

Under appellants' point No. 2 the objection and argument are directed to the giving of one instruction only, which reads as follows:

'If you find from the evidence that any driver conducted himself in violation of any of the Motor Vehicle Acts just read to you, you are instructed that such conduct constituted negligence as a matter of law unless justified or excusable. However, in this action, a violation of law is of no consequence unless it was a proximate cause of an injury found by you to have been suffered by plaintiff.' (Emphasis added.)

This instruction was proposed by appellants and modified by the trial judge by adding the italicized words, to wit: 'unless justified or excusable.'

On this point appellants also submitted the following instruction:

'A violation of a Motor Vehicle Code provision governing the operation of motor vehicles upon the highways of this State (except certain speed statutes) constitutes negligence in and of itself, and as a matter of law, unless excusable or justifiable by circumstances beyond the control of the person violating such provisions of the Vehicle Code. Thus, if you find that the defendant, Robert L. Lowthian, violated any one or more of the provisions of the Vehicle Code (excepting certain speed statutes) and that such conduct on his part, if any, was neither justifiable nor excusable by circumstances beyond his control; and if you further find such violation or violations of the Vehicle Code, if any, were the direct and proximate cause of injuries to plaintiffs Kuehn and James, then you must find and conclude that defendant, Robert L. Lowthian, was guilty of negligence.'

Appellants' complaint is that their instruction, modified and given by the court, omits the words, 'by circumstances beyond the control of the person violating,' after the words, 'excusable or justifiable.' Appellants argue that this omission left the jury without instruction as to the standard or type of evidence necessary to rebut the presumption of negligence arising from violation of a statute. That,--'It in substance left to the determination of the jury the type of evidence which would constitute 'excusable or justified' conduct without providing the yardstick for measurement.'

This very question, that of violation of a provision of the Vehicle Code, was involved in Satterlee v. Orange Glenn School Dist., 29 Cal.2d 581, 177 P.2d 279. As the issue was there stated in the opinion, 29 Cal.2d at page 583, 177 P.2d at page 280: 'The principal points relied upon as grounds for a reversal of the judgment * * * concern two jury instructions stating the legal effect of violation of the Vehicle Code in fixing liability for the accident.' The applicable rule is stated, 29 Cal.2d on page 589, 177 P.2d on page 283, as follows: "* * * An act which is performed in violation of an ordinance or statute is presumptively an act of negligence, but the presumption is not conclusive and may be rebutted by showing that the act was justifiable or excusable under the circumstances. Until so rebutted, it is conclusive. [Citing cases.]' However, the fact which will excuse the violation of a statute has been defined by the court as one resulting 'from...