Mack v. Valley Motor Lines, Inc.

• Decision Date: 07 April 1961
• Citation: 191 Cal.App.2d 38,12 Cal.Rptr. 314
• Parties: Clyde F. MACK, Plaintiff and Respondent, v. VALLEY MOTOR LINES, INC., a corporation, Defendant and Appellant. Fern V. HOAGLAND et al. and Valley Motor Lines, Inc., a corporation, Plaintiffs and Appellants, v. Clyde F. MACK and Western Cargo Co., a corporation, Defendants and Respondents. Civ. 6098.
• Court: California Court of Appeals Court of Appeals

Page 314

12 Cal.Rptr. 314

191 Cal.App.2d 38

Clyde F. MACK, Plaintiff and Respondent, v. VALLEY MOTOR LINES, INC., a corporation, Defendant and Appellant.

Fern V. HOAGLAND et al. and Valley Motor Lines, Inc., a corporation, Plaintiffs and Appellants, v. Clyde F. MACK and Western Cargo Co., a corporation, Defendants and Respondents.

Civ. 6098.

District Court of Appeal, Fourth District, California.

April 7, 1961.

Cardozo, Trimbur & Nickerson, J. M. Trimbur and W. A. Martin, Modesto, for appellants.

Hartwell & Nelson, Gordon W. Nelson, John S. Hartwell, Hayward, Sedgwick, Detert, Moran & Arnold, San Francisco, and Frank Creede, Jr., Fresno, for respondents.

GRIFFIN, Presiding Judge.

In these consolidated actions on appeal, the general summary of the case, as adopted by all parties, is that plaintiff Clyde F. Mack, the operator of the Reo tractor and flatbed trailer involved in the accident, brought action number 103073 against defendant and appellant Valley Motor Lines, Inc., the owner of another truck (an International tractor, trailer and semi-trailer), to recover damages for personal injuries. Action number 104630 was brought by plaintiffs and appellants Fern V. Hoagland, individually and as guardian of Jeanette Hoagland, Bruce Hoagland and Dale Hoagland, minors, and Valley Motor Lines, Inc., a corporation, against defendants and respondents Clyde Mack and his employer, Western Cargo Company, a corporation, for damages for the wrongful death of Neal Hoagland, the husband of Fern V. Hoagland and father of the minor children, which death occurred as a result of the same accident. Valley Motor Lines, Inc. sought to recover for damages to the truck which Hoagland was driving and for damages to the cargo. All defendants denied negligence on their part and alleged contributory negligence on the part of plaintiffs. A verdict was rendered 'in favor of plaintiff Clyde F. Mack.' Damages were assessed at $20,000. Since no point is made as to the form of the verdict we will assume that in action number 104630 the jury also denied plaintiffs a recovery against both defendants. Defendant Valley Motor Lines, Inc. appealed from the judgment entered in case number 103073, and plaintiff Fern V. Hoagland, et al., and Valley Motor Lines, Inc. appealed from the judgment entered in action number 104630.

The collision between these two trucks occurred in Tulare County. Clyde F. Mack was driving Western Cargo Company's Reo truck north on U.S. Highway 99 on July 30, 1958 at about 3:00 a. m. when he had tire trouble and pulled off on the right-hand side of the roadway and onto the shoulder. He stopped about one-half mile north of the Goshen overpass. The asphalt roadway at that point has four lanes separated with a dividing strip with both an improved asphalt and an unimproved dirt shoulder. There were no curves in the road at that location.

Decedent Hoagland was driving Valley Motor Lines, Inc. International truck north-bound from Los Angeles, and shortly after Mack pulled off the highway with his Reo truck the two trucks collided at or near the place where Mack had stopped. Hoagland was killed, Mack was injured and the two trucks were severely damaged.

There were two theories as to how the accident occurred. Mack's theory was that Hoagland drove his truck off onto the shoulder and struck Mack's parked truck. The theory of Valley Motor Lines, Inc. was that Mack drove his vehicle back onto the highway directly in front of Hoagland in such a manner that Hoagland could not avoid hitting the left rear end of Mack's truck. There was both direct eyewitness testimony and physical evidence at the scene to support both theories. Apparently the only surviving eyewitness to the accident, other than Mack, was one Merrill C. Curtis, who testified for the defendant Valley Motor Lines, Inc. The other witnesses for defendant were California Highway Patrol officers.

Mack testified that when he reached a point just north of the Goshen overpass, he had some difficulty with one of his tires, in the nature of a retread peeling off, and pulled onto the wide dirt shoulder on the side of the highway to make repairs; that after making the repairs he pulled ahead and up close to the highway, looked in the rear vision mirror for other vehicles and for an opening to pull out; that he had his lights on as well as his turn signal, which was equipped with a bulb and a reflector; that other trucks passed him, blinking their lights and moving over to the inside lane; that finally he observed the truck being driven by Hoagland come over the overpass and travel toward him without blinking its lights; that this truck first struck the trailer of Mack's vehicle, which was at the time of the collision parallel to the highway, six to eight inches off the main traveled way; that it stopped and then came farther on and up to the side of Mack's trailer and hit the cab and that Hoagland's truck then turned over. Mack testified that he then disconnected the batteries of his tractor after the collision.

The witness Curtis, also a Valley Motor Lines, Inc. driver, testified that he had followed Hoagland's vehicle for about 20 miles and near the point of the accident Hoagland was proceeding ahead of him down the middle of the right-hand lane; that he did not see a vehicle parked on the east shoulder of the highway, nor the lights of a vehicle claimed to be parked there; that Hoagland's vehicle seemed to veer to the left, before the collision and never to the right, and that it did not travel off of the main highway. He also testified that he heard Mack tell someone that he had pulled back onto the road and was hit, and that he had been moving down the shoulder at about five miles per hour. This witness testified that he told the patrol officer that he had seen the accident but he gave no written statement to them about it.

Highway patrol officers testified that they found the point of impact to be about four feet east of the line dividing the two north- bound lanes, and about eight feet west of the east shoulder of the highway, and that the right front of deceased's truck struck the left rear end of Mack's trailer. One officer testified that Mack told him he had fixed his tire, had his semaphore out and was preparing to come back onto the road and was still on the shoulder when the other truck struck his trailer in the rear. This officer found part of a tire recap south of the point he fixed as the point of impact and off of the highway and said that the lights on Mack's truck were operative. He further testified that he found cargo from Mack's trailer on the unimproved shoulder and also on the improved shoulder.

Appellants' sole contention on appeal is that it was prejudicial error for the trial court to refuse to instruct that a violation of either section 543 or section 544, subdivision (a), of the Vehicle Code ¹ (starting parked vehicles and turning movements on highways) was presumptively an act of negligence and that no instruction was given in the language of BAJI No. 149 to the effect that:

'If either driver in this accident violated any of the statutes just read to you, a presumption arises that he was negligent. This presumption is not conclusive. It may be overcome by other evidence showing that under all the circumstances surrounding the event, the conduct in question was excusable or justifiable. To prove that such a violation of a statute such as that charged in this case was excusable or justifiable so as to overcome the presumption of negligence, the evidence must support a finding that the person who violated these statutes did what might reasonably be expected of a person of ordinary prudence who desired to comply with the law, acting under similar circumstances.'

It is claimed that by refusing this instruction the court deprived defendants of the key instruction on their theory of the case. Citing Alarid v. Vanier, 50 Cal.2d 617, 327 P.2d 897.

It is the claim of respondents that Vehicle Code, §§ 543 and 544, subdivision (a), do no more than apply the reasonable man standard or the common-law stantard of care to particular traffic situations, and therefore the giving of BAJI Instruction No. 149 would have been redundant because it, also, in effect, states the same rule. Citing Smith v. Harger, 84 Cal.App.2d 361, 191 P.2d 25; Hughes v. MacDonald, 133 Cal.App.2d 74, 283 P.2d 360; De Young v. Haywood, 139 Cal.App.2d 16, 292 P.2d 917.

Alarid v. Vanier, supra, is somewhat factually similar to the instant case. The claimed violation there was of Vehicle Code, § 670 (inadequate brakes) and section 679 (operating vehicle in an unsafe condition). ² The Supreme Court there held that the giving of an instruction that a presumption of negligence arises from a violation of a statute was proper, but that it should be followed by an instruction to the effect that such presumption is rebuttable and may be overcome by evidence of justification or excuse (citing cases). However, it was held that the failure to give this additional instruction was not prejudicial error in view of the evidence and other instructions given. To the same effect is Shehtanian v. Kenny, 156 Cal.App.2d 576, 579, 319 P.2d 699, which involved former Vehicle Code, § 526, subdivision (a) (driving entirely within a single lane unless driver has first ascertained that a movement therefrom can be 'made with safety') ³ and section 544, subdivision (a), supra (no movement to the left or right upon a roadway unless it can be made 'with reasonable safety'). That case involved Vehicle Code sections similar to those involved in the instant case, both of which pertained to the element of reasonable care. It there held that the failure to act within the standards fixed by the Vehicle Code is negligence per se, and it was proper to instruct in the language of BAJI No. 149. See also Larson v. King, 71 Cal.App.2d 421, 162 P.2d 974.

It is the general rule that conduct in violation of the Vehicle...