Lowe v. Lee
| Decision Date | 24 January 1950 |
| Docket Number | No. 14048,14048 |
| Citation | 95 Cal.App.2d 685,213 P.2d 767 |
| Parties | LOWE v. LEE. Civ. |
| Court | California Court of Appeals Court of Appeals |
D. W. Brobst, Oakland, for appellant.
Charles V. Barfield, San Francisco, Franklin A. Plank, San Francisco, of counsel, for respondent.
Plaintiff appeals from a judgment rendered pursuant to a verdict for defendant in an action for personal injuries. The injuries resulted from a rear end collision between a Studebaker sedan driven by defendant and a Chevrolet driven by one Chew and in which plaintiff was riding.
Plaintiff was employed as a pianist in a cocktail lounge in San Francisco from 8 p. m. to 12 p. m. Shortly before midnight on May 3, 1947, Chew called for him at the lounge and offered him a ride home across the bay. They drove to a cafe and had dinner, thence across the bay bridge, traveling in the middle eastbound lane.
Defendant, driving his Studebaker toward Oakland and accompanied by his wife, had crossed the bridge in the southerly lane, and while on the level part of the easterly approach between the toll gate and the incline stopped behind a Buick which had stopped behind a stalled car. After 2 or 3 minutes the Buick moved out of the southerly lane into the middle lane and Lee followed one or two car lengths behind. The right front end of Chew's Chevrolet collided with the left rear of Lee's Studebaker just as it had moved into the middle lane, resulting in severe injuries to plaintiff.
Lee testified that before he started up he looked back and saw a car following in the lane next the center line at a distance of 400 or 500 feet, traveling, as he thought, within the speed limit. He gave an arm signal, started up, and did not again look back. Lee testified that after the collision Chew said, 'Oh, I didn't even see.' Lee's wife corroborated him in all substantial respects.
Plaintiff testified that he saw no signal but first saw the Studebaker ahead at a distance of 100 or 200 feet, and elsewhere he said that as they were traveling in the middle lane 'all of a sudden an automobile moved out in front of us' and the collision was 'practically simultaneous.'
Chew testified that he saw no signal but saw the car 100 or 150 feet ahead turn suddenly into his lane and that he applied his brakes about 75 feet before they struck. He testified that while waiting for plaintiff at the lounge he had a bottle of beer. A half filled bottle of brandy was on the front seat of the car after the collision but Chew said that this was carried in the glove compartment for religious purposes.
Two highway officers testified that Chew's breath was strongly alcoholic, not resembling the odor of beer, and that a statement then given by him, in which he admitted operating his vehicle at 40 miles per hour (which exceeded the limit), was incoherent but that such incoherence was due to his own injury and not to intoxication.
From the foregoing summary it is apparent that there was evidence sufficient to support any one of four conclusions, namely (1) that defendant alone was negligent; (2) that Chew alone was negligent; (3) that defendant and Chew were simultaneously negligent, or (4) that the accident was unavoidable.
Appellant's principal contention is that the giving of conflicting and misleading instructions on imputed negligence and agency was prejudicial error.
In an instruction proposed by plaintiff the jury was told unequivocally 'that the driver's negligence, if any, may not be imputed to the plaintiff * * *'
Later, on the court's own motion the jury was instructed that any negligence of the driver 'is not imputable to or chargeable against said plaintiff, nor is he in any manner, except as otherwise herein instructed, to be considered by you as legally responsible therefor * * *'
The phrase just emphasized by us created a conflict since the jury had been already told in effect that imputed negligence was not in the case.
Then the exception to which the jurors had been thus alerted was given them in this instruction proposed by defendant: 'if you find * * * Chew was driving and controlling his automobile at the time of this collision as the agent of plaintiff Lowe, and if you further find that he was driving and controlling said automobile in the course and scope of his agency, then any negligence on the part of * * * Chew is imputed to and in law becomes the negligence of the plaintiff * * *'
Incidentally, the jurors were not instructed as to how or in what manner Chew could have become plaintiff's agent or as to the meaning of 'the course and scope of his agency.'
It is true that defendant pleaded plaintiff's contributory negligence by alleging that plaintiff and Chew were negaged in a joint enterprise; that both had the joint right of control, and control of the operation of the automobile and that Chew was the agent of plaintiff in such operation, but there was no evidence to prove that the control or right of control of Chew's car reposed in anybody but Chew. Chew testified:
Further:
' .
Appellant testified that he did not drive an automobile and never had driven one; that his eye-sight was impaired by cataracts which affliction was congenital. He testified:
The foregoing was the only evidence touching appellant's connection with the car.
In the recent case of Edwards v. Freeman, 34 Cal.2d 589, 212 P.2d 883, 884, a son while driving his mother down town for an eye examination had a collision in which she was injured. She sued the driver of the other vehicle who urged the defense that the son was his mother's agent and that his negligence was imputable to her. After summarizing the evidence relied on to show agency the court said:
This language is perfectly applicable to the evidence in the instant case.
To the authorities cited in that case, the following might be added: Spence v. Fisher, 184 Cal. 209, 212, 193 P. 255, 14 A..L.R. 1083; Buelke v. Levenstadt, 190 Cal. 684, 689, 214 P. 42; ...
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