Kumelauskas v. Cozzi

• Decision Date: 03 September 1959
• Citation: 343 P.2d 605,173 Cal.App.2d 541
• Court: California Court of Appeals Court of Appeals
• Parties: Alfred KUMELAUSKAS, Plaintiff and Respondent, v. Rosario COZZI, Defendant and Appellant. Civ. 23622.

Page 605

343 P.2d 605

173 Cal.App.2d 541

Alfred KUMELAUSKAS, Plaintiff and Respondent, v. Rosario COZZI, Defendant and Appellant.

Civ. 23622.

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

Sept. 3, 1959.

Hearing Denied Oct. 28, 1959.

Schell, Delamer & Loring, Los Angeles, for appellant.

Irving H. Green and Eric Julber, Los Angeles, for respondent.

VALLE E, Justice.

Appeal by defendant from a judgment for plaintiff entered on a jury verdict in an action for damages for personal injuries. Defendant pleaded that plaintiff was contributively negligent.

The accident occurred about 2:30 a. m. in the morning of March 10, 1956 at the intersection of Sunset Boulevard and West Lavita Terrace in Los Angeles. Plaintiff was a pedestrian; defendant was the driver of an automobile. Sunset runs generally east and west; West Lavita, generally north and south. There was no crosswalk on the west side of the intersection; there was an unmarked crosswalk on the east side. Defendant was driving an automobile west on Sunset in the lane next to the double line. The speed limit on Sunset was 25 miles an hour. Plaintiff was crossing Sunset. As plaintiff was crossing, he was struck by defendant's car, leaving a slight dent in the left-front fender.

Police officers arrived at the scene about 5 minutes after the accident and found plaintiff lying about 5 feet east of the west curb line of West Lavita and 2 feet south of the double white line. He had not been moved. He was taken to the receiving hospital and later to the county hospital.

Plaintiff testified he had no recollection whatsoever of the accident and could not explain why or how it occurred; that on March 9, 1956, the day before the accident, he left his home about 9 a. m. to go to his union to try to get a job, and the next thing he remembers after that was waking up in the hospital and seeing his leg in a cast.

A police officer who was a special investigator assigned to the accident investigation division testified he interviewed plaintiff in the hospital on March 12, 1956. He thought he got a good report from plaintiff. Plaintiff tole him he was involved in an accident with a car; the car was westbound on Sunset; he was a pedestrian; he was walking across Sunset in a northerly direction; he was within a marked crosswalk on the west side of Lavita Terrace; he had not seen the car before the impact; he saw it at the moment of impact; he had had one beer at the race track in the afternoon. The officer showed plaintiff a picture of the intersection and plaintiff indicated a position on the west side of Lavita Terrace as the place where the accident occurred. The county hospital record of March 11, 1956, the day after the accident, showed that plaintiff was 'Alert, oriented, conscious.'

At plaintiff's request the court gave these instructions:

'The law presumed that Alfred Kumelauskas, the plaintiff in this action, in his conduct at the time of and immediately preceding the accident here in question, was exercising ordinary care and was obeying the law.

'These presumptions are a form of prima facie evidence and will support findings in accordance therewith, in the absence of evidence to the contrary. When there is other evidence that conflicts with such a presumption, it is the jury's duty to weigh that evidence against the presumption and any evidence that may support the presumption, to determine which, if either, preponderates. Such deliberations, of course, should be related to and be in accordance with my instructions on the burden of proof.

'The presumption is that every man obeys the law, and the presumption in this case is that the plaintiff Alfred Kumelauskas was crossing the street in a careful and prudent manner, was keeping a proper lookout for his own safety, and was at all times exercising ordinary care.

'This presumption is in itself a species of evidence, and it shall prevail and control your deliberations until and unless it is overcome by satisfactory evidence.'

Defendant asserts prejudicial error. He says these instructions twice tole the jury unconditionally that plaintiff was entitled to a presumption that he was exercising due care and did not inform them that plaintiff was entitled to such presumption only if he had in fact loss his memory of the accident.

One who, by reason of loss of memory, is unable to testify concerning his conduct at and immediately before the time of an accident, is entitled to invoke the presumption that he exercised ordinary care for his own concerns, subject to the exception that such presumption is dispelled by evidence introduced by such party which is wholly irreconcilable therewith. Scott v. Burke, 39 Cal.2d 388, 394, 247 P.2d 313. The rule is established that if a person whose claimed negligence is in issue is unable to testify by reason of loss of memory, the fact that other witnesses for the parties testify fully as to the accident and conduct of the allegedly negligent person does not deprive the party relying on the presumption of the benefit thereof unless the testimony which he himself produces, under circumstances which afford no indication that the testimony is the product of mistake or inadvertence, is wholly irreconcilable with the presumption. Gigliotti v. Nunes, 45 Cal.2d 85, 93, 286 P.2d 809.

It is the rule that the evidence must show that the loss of memory claimed by a party was caused by the accident to bring the presumption into play. Scott v. Sheedy, 39 Cal.App.2d 96, 101, 102 P.2d 575; Gioldi v. Sartorio, 119 Cal.App.2d 198, 201, 259 P.2d 62; Thompson v. Southern Michigan Transp. Co., 261 Mich. 440, 246 N.W. 174, 176; Drago v. New York Cent. & H. R. R. Co., 139 App.Div. 828, 124 N.Y.S. 374, 376. The amnesia must be genuine. Ringo v. Johnson, 99 Cal.App.2d 124, 129-130, 221 P.2d 267; Bergman v. Bierman, 138 Cal.App.2d 692, 696, 292 P.2d 623. The court in Scott v. Burke, supra, 39 Cal.2d 388, at page 393, 247 P.2d 313, at page 316, held it was proper to instruct that 'if the jury believed that defendant as a result of the shock of the accident was unable to remember and testify as to his own conduct or other facts of the accident then a presumption arose that he 'was obeying the law and was exercising ordinary care and doing such acts as an ordinarily prudent person would have done in the same circumstances.''

In Gioldi v. Sartorio, 119 Cal.App.2d 198, at page 201, 259 P.2d 62, at page 64, it was said:

'The point chiefly relied upon by appellants is their claim that the court erred in giving an instruction on the presumption of plaintiff's exercise of due care. Plaintiff testified that she had no recollection of anything which occurred between the night before her injuries and sometime after the accident when she found herself in the hospital. * * * The court carefully qualified the instruction on the presumption of care by instructing the jury that the presumption would only arise 'if * * * you find * * * that as a result of the accident plaintiff was deprived of her memory of events leading up to such accident.' Under the circumstances of this case this instruction was properly given.'

In Zollars v. Barber, 140 Cal.App.2d 502, 295 P.2d 561, the plaintiff, a pedestrian, was injured when struck by an automobile while crossing a...