Malkasian v. Irwin

• Court: California Supreme Court
• Writing for the Court: PETERS; GIBSON; McCOMB
• Citation: Malkasian v. Irwin, 61 Cal.2d 738, 40 Cal.Rptr. 78, 394 P.2d 822 (Cal. 1964)
• Decision Date: 27 August 1964
• Parties: , 394 P.2d 822 Siranoush MALKASIAN, Plaintiff and Respondent, v. Ralph Carlisle IRWIN, Defendant and Appellant. S. F. 21675.

Page 78

40 Cal.Rptr. 78

61 Cal.2d 738, 394 P.2d 822

Siranoush MALKASIAN, Plaintiff and Respondent, v. Ralph Carlisle IRWIN, Defendant and Appellant.

S. F. 21675.

Supreme Court of California, In Bank.

Aug. 27, 1964.

Rehearing Denied Sept. 24, 1964

McCormick, Barstow, Sheppard, Coyle & Best, Fresno, and William B. Boone, Santa Rosa, for defendant and appellant.

James C. Janjigian and Paul Mosesian, Fresno, for plaintiff and respondent.

Henry F. Walker, Los Angeles, amicus curiae.

PETERS, Justice.

Plaintiff brought this action for the wrongful death of her son. The jury brought in a defense verdict. Plaintiff moved for a new trial. The motion was granted. Defendant appeals, contending that the order granting the new trial cannot be sustained on any of the grounds contained in the motion.

Before directly discussing the new trial proceedings, some reference should be made to the evidence.

The undisputed evidence shows that plaintiff's son was killed in an accident which occurred on Highway 99, some nine miles north of Fresno. At that point the road consisted of three lanes (southbound, northbound and a center passing lane), each approximately 12 feet wide, and two shoulders, each approximately 10 feet in width. Decedent, alone, was driving southerly (toward Fresno). Defendant, also unaccompanied, was also driving southerly, and his car was behind (or northerly of) decedent. The accident occurred opposite the Mammoth Truck Terminal, a service station and restaurant catering to trucking outfits, located on the westerly, or right-hand side of the highway going south. A large truck-trailer was parked between the gasoline pumps of the station and the road, facing southerly, with its left wheels just within the westerly shoulder of the highway. ¹

It is undisputed that defendant's vehicle collided with the left rear of the decedent's car, and that the latter collided with the parked truck. It was plaintiff's theory that defendant's car crashed into the rear end of the car being driven by decedent and caused the latter to veer to the right and crash into the parked truck-trailer. It was defendant's theory that in some way decedent's car first ran into the truck-trailer, and, as a result, placed itself in a position where defendant's car hit it, and knocked it into the truck-trailer for a second time. Plaintiff's theory of the accident is, of course, supported by the presumption of due care, and also by an analysis of the physical facts.

Except for defendant, and one of his witnesses, there were no eyewitnesses of the accident. Most of the witnesses did not see the accident but heard it, and arrived shortly after its occurrence. Their testimony was largely based on maps, diagrams and photographs, and on the physical facts.

On the issue of liability, the plaintiff presented three witnesses, certain maps, diagrams and photographs that they identified, and the depositions of defendant and of the driver of the parked truck. None of the three witnesses saw the accident occur. One was the manager of the Mammoth Truck Terminal, and another was an attendant at that station. They were busy at the moment of the collision, and their view was blocked by the parked truck-trailer. They saw neither car until it had come to rest after the accident. Their attention was first attracted by the noise of the collision, the manager testifying that he first heard a minor crash followed almost immediately by a loud crash, the attendant remembering only one crash.

The third witness called by the plaintiff on the issue of libility was the highway patrol officer who arrived at the scene some 16 minutes after the accident occurred. He took pictures of the scene as it then appeared. The driver of the truck-trailer, according to his deposition read into evidence, was standing on the opposite side of his equipment from the approaching vehicles and so could not see the accident.

The plaintiff also read into evidence the deposition of defendant taken before trial. Defendant there stated that about 2:20 p. m. on the day in question, which was clear and dry, he was traveling southerly in the right-hand lane, at a speed of about 45 miles per hour, when he first saw the decedent's car about 130 feet in front of him in the same lane, at or near the parked truck-trailer. He was quite positive that he did not then or before he hit the decedent's car, see the latter come in contact with the truck or trailer. He testified, however, that the rear end of decedent's car appeared to be making a sideways movement from the right to the left. He claimed to have applied his brakes at once, but admittedly made no effort to turn into the middle or passing lane so as to avoid a collision. Almost immediately thereafter, the front end of his car came into violent collision with the left rear end of decedent's vehicle. This caused his car to veer to the left, and it came to rest on the casterly shoulder. The collision, he admitted, took place entirely in the southbound lane. He admitted that he had not seen decedent's car prior to the time described above, and conceded that he did not know from which direction it had come in order to be in the position where he first saw it. Although there was some other traffic on the highway, he recalled no car passing him in either direction. There was no obstruction to block his view ahead. He was not injured. After the accident, he alighted from his car, and then saw decedent's vehicle facing in a northwesterly direction with its front end against the side of the trailer, its rear end at an angle to the trailer. Almost the entire length of decedent's car was then on the shoulder. It will be noted that if defendant's theory is correct there should have been three crashes, the first, when plaintiff is supposed to have hit the truck-trailer and bounced out onto the highway, the second when defendant's car hit that of decedent, and the third when decedent's car crashed into the truck-trailer. None of the witnesses, produced by either side, heard more than two crashes, which is some support for plaintiff's theory.

The station manager and the attendant testified that, immediately after the accident, defendant stated to them that he did not see decedent's car until just before the impact. The police officer testified that defendant told him that just before the accident he was proceeding at 40 miles per hour.

There was some confusion in the testimony as to the exact position of decedent's car after the accident. One witness recalled that he first saw decedent's car headed into the trailer but facing in a general southerly direction. In this position the car was partly in the southbound lane, thus partially blocking it. The witness testified that several Marines, who had arrived shortly after the accident, moved decedent's car to the position facing northerly, the position in which defendant had testified that he found it after leaving his car. The other witnesses recalled seeing the car facing generally in a northerly direction, and did not recall seeing anyone move it into that position.

The balance of the testimony produced by plaintiff was uncontradicted. It was to the effect that the day was bright and clear, visibility practically unlimited to southbound drivers, that skid marks about 33 feet in length started from a point in the southbound lane to the point where rubble indicated the collision took place and then continued left across the highway to where defendant's car came to rest. There was collision rubble on the shoulder where decedent's car had hit the truck-trailer. The principal damage to the parked trailer was near the rear wheel which was some unspecified distance from the overhanging rear end. The front of decedent's car was caved in, the left rear fender and bumper were pushed in, and the left rear trunk area was caved in. Defendant's car showed severe damage to the right front end.

Defendant testified on his own behalf, and also presented the testimony of a passenger in a vehicle traveling northerly in the area at the time of the accident. The defendant's testimony was substantially in accord with his deposition. The passenger in the vehicle proceeding northerly testified that his car was going at about 50 miles an hour when the accident occurred; that his car was then about 300 feet south of the point of impact; that he first saw decedent's car alongside the truck-trailer; and that it appeared to be bouncing backward as if it had hit the truck and trailer. On cross-examination he admitted that he did not then see any contact between decedent's car and the trailer, and that he simply assumed such contact had occurred. He testified that almost immediately after he first saw decedent's car, defendant, approaching at about 50 miles per hour, crashed into it, and veered off to the easterly lane, and that this caused decedent's car to spin around and hit the trailer. He was obviously confused as to the physical conditions of the highway at the point of impact, his description being at variance with the photographs and the testimony of all of the other witnesses.

On this evidence the jury brought in a defense verdict. The plaintiff duly and properly moved for a new trial on the grounds of insufficiency of the evidence, that the verdict was against the law, and that the defendant's counsel was guilty of prejudicial misconduct in his argument to the jury. At the conclusion of the argument on the motion, the trial judge stated that the record should show that 'this is one of the few cases in the thirteen years that I have been here that I would almost feel compelled to instruct a verdict for the plaintiff,' but that he had determined to let the case go to the jury 'even though the Court might have a different view than counsel, * * * (and that the verdict was) much to the Court's surprise. * * *

'This is a case where liability should attach, rather clearly and forcefully; and there was a miscarriage of...