M & M Livestock Transport Co. v. California Auto Transport Co., s. L

• Decision Date: 28 January 1955
• Docket Number: Nos. L,s. L
• Citation: 279 P.2d 13,43 Cal.2d 847
• Court: California Supreme Court
• Parties: M & M LIVESTOCK TRANSPORT CO., Plaintiff-Respondent, v. CALIFORNIA AUTO TRANSPORT COMPANY et al., Defendants; Walter Alves et al., Appellants. Vern BAKER, Plaintiff-Respondent, v. Walter ALVES, doing business as Alves Service Transportation Company, a corporation, Hanley Henry Madrid, and Floyd Gonzales, Defendants-Appellants. A. 23197, 23198.

Page 13

279 P.2d 13

43 Cal.2d 847

M & M LIVESTOCK TRANSPORT CO., Plaintiff-Respondent, v. CALIFORNIA AUTO TRANSPORT COMPANY et al., Defendants;

Walter Alves et al., Appellants.

Vern BAKER, Plaintiff-Respondent, v. Walter ALVES, doing business as Alves Service Transportation Company, a corporation, Hanley Henry Madrid, and Floyd Gonzales, Defendants-Appellants.

Nos. L. A. 23197, 23198.

Supreme Court of California, In Bank.

Jan. 28, 1955.

Conron, Heard & James and Calvin H. Conron, Bakersfield, for appellants.

Kenneth J. Thayer, Dorsett M. Phillips, Bakersfield, William A. Kurlander and Leslie G. MacGowan, San Francisco, for respondents.

CARTER, Justice.

Defendants appeal from judgments awarding plaintiffs Baker and M & M Livestock Transport Company damages for harm to their trucks arising out of a collision in which three other trucks were involved. The cases were consolidated for trial by the court sitting without a jury.

Viewing the evidence most favorable to plaintiffs the following appears: The collision occurred about 2 p.m. on a clear day on Highway 466 in the Tehachapi Mountains. The highway ran generally in an east-west direction and was marked with a broken center line. At the point of impact it was about 34 feet wide including the shoulders, and on each side there was a steep embankment to a ravine below. The upgrade to the east was estimated variously at 3% to 6 1/2%.

Before the collision, three trucks averaging 60 feet in length and 8 feet in width, were proceeding upgrade in the eastbound lane. The first was the Automobile Forwarding Service Truck, a two-ton tractor-trailer loaded with four cars, which was driven by Charles French in its proper lane at 7 to 8 miles an hour. Behind French was plaintiff Baker's truck, a top-type automo-mobile carrier truck, which was unloaded. Following Baker was plaintiff M & M Livestock Transport Company's unloaded tractor-truck driven by Curtis Lacert.

Prior to the collision Baker had been ascending the grade at about 32 miles per hour and he was able to accelerate his speed on the grade and was doing so. Thus there was evidence that Baker's truck was capable of passing French's truck safely considering the extent of the view ahead. When Baker pulled up behind French and commenced his maneuver to pass French, the latter veered sharply to the right as far as his truck would go and onto the shoulder, thus leaving about 9 feet between the left side of his truck and the center line. When Baker was passing on French's lefthand side he was going about 15 miles per hour. The right side of Baker's truck was 1 to 2 feet from the left side of French's. Although Baker testified he estimated the left side of his truck was about 2 feet to the left of the center line, it could have been on or to the right of the center line on the basis of the above figures. When he started to make the passing maneuver, Baker had a clear view of the road ahead for 800 feet to a point where the road curved. No one was approaching from the east. While passing, Baker's truck 'faltered' or 'stopped' as described by various witnesses. That was due to a slipping of the gears which he had had repaired immediately before the trip on which he was driving when the collision occurred. When the tractor portion of Baker's truck (20 feet long) and 2 feet of the trailer had passed French, a truck owned by defendant Alves and driven by defendant Madrid rounded the curve between 400 and 500 feet away, travelling west toward Baker and French at a speed of 50 or 60 miles per hour. Madrid's truck weaved from right to left on the highway and finally collided with the right front end of Baker's truck and left front of French's truck, the latter two trucks having stopped. Madrid's truck weighed 65,000 pounds and was travelling downhill. Apparently he had little control over it. It was going 50 miles per hour at the time of the impact.

Baker's truck was pushed back until it collided with the M & M truck. A moment later a second truck owned by defendant Alves and driven by defendant Gonzales came round the same curve from the east and, being unable to stop, skidded into the first Alves truck and turned over. The trucks caught fire, but the drivers escaped uninjured.

Defendants assert that plaintiff Baker was contributively negligent as a matter of law in that he violated section 530 of the Vehicle Code. ¹ No contention is made that defendants were not negligent.

As we read section 530, it requires that when passing, the view of the road and distance ahead of oncoming traffic be such that the passing maneuver may be made with safety and that the passing shall not be done on a curved road where, to do so, creates a hazard; it does not mean that when passing the conditions must be such that the passer guarantees he may safely pass or that he has necessarily violated the section by failing to complete the maneuver without accident, that is, the question is not entirely one of hindsight. Essentially the passer is required to act in a reasonable and prudent manner under the circumstances such as are presented in this case.

To say that under the foregoing circumstances Baker was contributorily negligent as a matter of law is not sustained by the record. The trial court was justified in finding, as it did, that Baker was not guilty of contributory negligence which proximately contributed to the collision. It is true that Baker did not succeed in getting past French and ahead of him on the right side of the road before Madrid came within collision distance. It may be that that failure is some indication that it was not safe for Baker to attempt to pass but his failure could be attributed to the slipping of the gears which was not his fault. In any case, however, we look at the situation as it appeared to a man of ordinary prudence at the time Baker commenced to pass French. As he commenced passing, French pulled over to the right indicating he would have room even if there was approaching traffic. The view was clear for 800 feet. The grade was only 3% or 4% and his truck was unloaded and had been previously gaining speed. As a person of ordinary prudence he was justified in assuming he could pass safely. He was not required to assume that an approaching vehicle 800 feet away would be travelling at such high and uncontrollable (considering the weight of Madrid's truck) speed that with that margin of safety he could not complete the passing maneuver. See Leo v. Dunham, 41 Cal.2d 712, 715, 264 P.2d 1. Certainly the question was one for the finder of fact, the trial court in the instant case. Even if Baker made a mistake in judging his ability to pass safely, that would not necessarily be contributory negligence. 65 C.J.S., Negligence, § 2; 38 Am.Jur., Negligence, § 33. The question of whether a man of ordinary prudence would have endeavored to pass is peculiarly a question for the trier of fact as it involves an exercise of judgment probably more difficult than any other conduct in driving a motor vehicle. 'But cases in which it can be said that the negligence of plaintiff contributes proximately to the accident as a matter of law are rare. The rule has been stated in various ways in a legion of cases, that contributory negligence is not established as a matter of law unless the only reasonable hypothesis is that such negligence exists; that reasonable or sensible men could have drawn that conclusion and none other; that where there are different inferences that may be drawn, one for and one against the one against will be followed; and that before it can be held as a matter of law that contributory negligence exists, the evidence must point unerringly to that conclusion. See Johnson v. Southern Pacific R. R. Co., 154 Cal. 285, 97 P. 520; Wise v. Stott, 114 Cal.App. 702, 300 P. 883; Heitman v. Pacific Electric Ry. Co., 10 Cal.App. 397, 102 P. 15; Daly v. Hinz, 113 Cal. 366, 45 P. 693; Robinet v. Hawks, 200 Cal. 265, 252 P. 1045; McVea v. Nickols, 105 Cal.App. 28, 286 P. 761; Schneider v. Market Street Ry. Co., 134 Cal. 482, 66 P. 734; Walker v. Southern Pacific Co., 38 Cal.App. 377, 176 P. 175; Zibbell v. Southern Pacific Co., 160 Cal. 237, 116 P. 513; Moss v. H. R. Boynton Co., 44 Cal.App. 474, 186 P. 631; Green v. Southern Pac. Co., 53 Cal.App. 194, 199 P. 1059; Kienlen v. Holt, 106 Cal.App. 135, 288 P. 866; Grimes v. Richfield Oil Co., 106 Cal.App. 416, 289 P. 245; Schellin v. North Alaska Salmon Co., 167 Cal. 103, 138 P. 723; Reaugh v. Cudahy Packing Co., 189 Cal. 335, 208 P. 125; Smith v. Southern Pacific Co., 201 Cal. 57, 255 P. 500; Flores v. Fitzgerald, 204 Cal. 374, 268 P. 369; Toschi v. Christian, 24 Cal.2d 354, 149 P.2d 848'. Anthony v. Hobbie, 25 Cal.2d 814, 818, 155 P.2d 826, 829. The cases cited by defendants are distinguishable.

Defendants' contention that contributory negligence must be imputed to M & M Livestock Transport Company, because Lacert was violating section 531 of the Vehicle Code ² at the time of the collision, cannot be sustained. Section 531 provides that a truck being driven on a highway must be kept at a distance of at least 300 feet to the rear of any vehicle immediately preceding it. The evidence is clear that the M & M truck was within a few feet of the rear of French's truck at the time of the collision, but section 531 expressly provides that its provisions 'shall not prevent overtaking and passing * * *.' The trier of fact could reasonably infer that Lacert had pulled up close behind the slow-moving truck driven by French with the intention of passing it when the highway was clear. The evidence therefore supports the finding that Lacert was not guilty of contributory negligence.

The judgments are affirmed.

GIBSON, C. J., and SHENK, J., concur.

EDMONDS, Justice (concurring).

I agree that the evidence does not show, as a matter of law, any negligence of Baker proximately contributing to his injury. However, I do not agree with the construction which has been placed...