Linzsey v. Delgado

• Citation: 54 Cal.Rptr. 762,246 Cal.App.2d 504
• Court: California Court of Appeals
• Decision Date: 17 November 1966
• Parties: Joseph LINZSEY and Jerry Linzsey, minors, by Carl Linzsey, their Guardian ad Litem, Plaintiffs and Appellants, v. Eloise P. DELGADO and San Jose Chemical Co., Defendants and Respondents. Civ. 653.

Page 762

54 Cal.Rptr. 762

246 Cal.App.2d 504

Joseph LINZSEY and Jerry Linzsey, minors, by Carl Linzsey, their Guardian ad Litem, Plaintiffs and Appellants, v. Eloise P. DELGADO and San Jose Chemical Co., Defendants and Respondents.

Civ. 653.

Court of Appeal, Fifth District, California.

Nov. 17, 1966.

[246 Cal.App.2d 505] J. Adrian Palmquist, Alameda, Francis T. Cornish, Alturas, for appellants.

Frank Richardson, Sacramento, for respondents.

OPINION

McMURRAY, Justice pro tem. ^*

After a six-day jury trial, the jury returned a unanimous verdict against appellants after deliberating 57 minutes. Judgment was entered on the same day; motion for new trial was made, heard, and denied, and appellants filed a timely notice of appeal from the judgment.

The general tenor of the arguments presented here is epitomized by the fact that while the transcripts and briefs designate appellants' name as being spelled 'Lindsey' the record shows the name was, in fact, and was supposed to be corrected to read, 'Linzsey.' Appellants' statement of facts contained in their briefs and almost consented to by respondents, is highly misleading when the record is read.

The facts appear, as viewed most favorably to respondents, that on April 17, 1963, one Rapisura parked his car in a driveway behind one Preston; this driveway was on the south side of an east-west street, 47th Avenue, in Sacramento County. Later Bob Naves perked his car behind Rapisura. At about 7 p.m. Preston wished to get out of the driveway and in order to enable him to do so, Naves backed his car out, crossing over a ditch culvert to back up the road to the west, in the eastbound lane of 47th. He backed far enough to allow Rapisura room to remove his car. There was a narrow, gravel shoulder and a ditch on both sides of the road in this area of 47th, and although Naves pulled as far onto the shoulder as possible, he was still partially on the two-lane road, the pavement of which was about 20 feet wide. There was still room for eastbound traffic to pass Naves without crossing over the center line. Rapisura then backed out of the drive to within 30 feet of Naves' car, stopping in the middle of the eastbound lane of traffic just west of the driveway. Preston then began to back out of the driveway.

At about this time respondent Delgado, driving respondent San Jose Chemical Company's station wagon on a delivery, was proceeding east on 47th with her niece, at a rate of some 30 to 35 miles per hour. They crossed over railroad tracks located 1,500 feet, more or less, west of the Naves and Rapisura cars; Delgado then saw the Naves car sitting on the shoulder with its lights off, swung slightly to the left to clear it, and slowed down, pulling to a complete stop directly behind Rapisura's car which blocked her lane; it had its lights on. She did not cross over the white line while passing Naves' car, and she was not over that line when she stopped. She remained stopped behind Rapisura for some period of time, between 15 seconds and two minutes.

Mitchell Balakin, who had been drinking so heavily that he failed a sobriety test later, was proceeding west on 47th. He had crossed a controlled intersection some 600 to 1,300 feet east of the three cars, and proceeded toward them at about 35 miles an hour. As he neared Rapisura's car, Balakin's Chevrolet panel truck suddenly swerved toward the stationary cars; he missed the Rapisura vehicle but struck the left rear end of Delgado's car. His truck swung to the right and proceeded some 220 feet further west, ending up in a ditch on the north side of 47th. Balakin was thrown out of the truck at some point in this trip.

Appellants were discovered lying injured in the north ditch in the path of Balakin's truck; their bicycle was some 180 feet from the point of impact between Balakin and Delgado. Appellant Jerry Linzsey, 15, was some 30 feet further west, and appellant Joseph Linzsey was some 45 to 55 feet further west, under the front axle of the truck.

At the trial both boys claimed they could remember nothing about the accident except crossing the railroad tracks while on the right-hand side of the road headed east, with Jerry pumping and Joseph riding on either the handlebars or crossbars. However, in his pretrial deposition, Jerry positively placed them as riding on the left side of 47th, headed east on the northern shoulder, facing westbound traffic. At one time during the trial he also said they were on the north side of 47th. Their bicycle had no light on it and no one saw the boys until after the accident.

At the trial the parties stipulated that the sun set at 6:44 p.m. on the date of the accident, all cars involved except Naves had their lights on. It was just 'getting dark' and several witnesses said it was dark enough to require headlights.

As in most cases there are conflicts in the evidence, including conflicts relative to the lighting conditions, the fact that the rear end of the Delgado car may have been projecting across the white line, and that perhaps the Delgado car was in motion at the time Balakin struck it.

Appellants contend that reversible error was committed because (1) the court confused the jury by instructing them on issues which were not presented, (2) the court failed to instruct the jury on issues which were presented, (3) the court gave erroneous instructions on issues which were presented, and (4) the net result was prejudicial to appellants and prevented them from having a fair trial. As in so many instances when errors in instructions are urged upon an appellate court, the arguments become somewhat ephemeral and attempt to hinge a reversal upon a particular word or phrase. These arguments are usually not particularly persuasive when it is remembered that a trial takes place in a court...