Martinez v. Harris

• Decision Date: 27 May 1969
• Citation: 78 Cal.Rptr. 325,273 Cal.App.2d 385
• Court: California Court of Appeals Court of Appeals
• Parties: Concepcion MARTINEZ, a Minor, by and through Luz Maria S. Martinez, her Guardian ad Litem; Augustin Martinez, Jr., a Minor, by and through Luz Maria S. Martinez, his Guardian ad Litem; and Luz Maria S. Martinez, individually; Jose Luis Martinez, a Minor, by and through Alfonso Martinez, his Guardian ad Litem; Ruben Martinez Ruis; and Heriberto Rodriquez, Plaintiffs, Appellants and Respondents, v. Myron HARRIS, Defendant, Respondent and Appellant. Civ. 25103.

Page 325

78 Cal.Rptr. 325

273 Cal.App.2d 385

Concepcion MARTINEZ, a Minor, by and through Luz Maria S. Martinez, her Guardian ad Litem; Augustin Martinez, Jr., a Minor, by and through Luz Maria S. Martinez, his Guardian ad Litem; and Luz Maria S. Martinez, individually; Jose Luis Martinez, a Minor, by and through Alfonso Martinez, his Guardian ad Litem; Ruben Martinez Ruis; and Heriberto Rodriquez, Plaintiffs, Appellants and Respondents, v. Myron HARRIS, Defendant, Respondent and Appellant.

Civ. 25103.

Court of Appeal, First District, Division 1, California.

May 27, 1969.

Rehearing Denied June 26, 1969.

Bostwick & Rowe, San Jose, for plaintiffs.

Miller, Van Dorn, Hughes & O'Connor, San Francisco, for respondent.

SIMS, Associate Justice.

Plaintiffs, injured parties and the heirs of deceased parties, ¹ appeal from an order of the trial court granting defendant's ² motion for a new trial in an action arising from an accident involving three automobiles. (See Code Civ.Proc., former § 963, subd. 2; now § 904.1, subd. (d).) Defendant, via a cross-appeal, appeals from the judgment against him. (See Cal.Rules of Court, rule 3, subd. (a)(2).)

Plaintiffs in their appeal contend that the statement of reasons in the court's order granting the new trial on the basis of insufficiency of the evidence is inadequate, and that therefore the court's order cannot be sustained on that ground. They further contend that there is nothing in the record to support the order. Defendant on the cross-appeal contends that the trial court erred in refusing to give an instruction on plaintiffs' contributory negligence, and in the giving of various instructions.

It is concluded that the court's order granting the new trial complied with the provisions of section 657 of the Code of Civil Procedure as they existed at the time the order was made (Stats.1965, ch. 1749, § 1, p. 3922), and that the order is supported by the record. The order granting the new trial must be affirmed. Defendant's cross-appeal is thereby rendered moot and should be dismissed. (Bignoli v. Seaboard Transportation Co. (1947) 29 Cal.2d 782, 792, 178 P.2d 445; Alhambra Cons. Mines, Inc. v. Alhambra Shumway Mines, Inc. (1966) 239 Cal.App.2d 590, 600, 49 Cal.Rptr. 38; Kubowitz v. Canon (1961) 194 Cal.App.2d 378, 385, 14 Cal.Rptr. 824; Freeman v. LaMorte (1957) 148 Cal.App.2d 670, 675, 307 P.2d 734; People ex rel. Dept. of Public Works v. McCullough (1950) 100 Cal.App.2d 101, 111, 223 P.2d 37; 3 Witkin, Cal.Proc., Appeal, § 122, p. 2299.)

Statement of Facts

The instant case arose from a three-car collision which occurred on Mission Boulevard in Fremont, at 7:25 p.m. on June 5, 1964. The weather at the time of the accident was good, it was still daytime and it was 'very' clear.

Defendant, Myron Harris, and his passenger Mrs. Rochelle Kaven, had just entered Mission Boulevard from Nursery Street. Defendant followed the curving lane provided for traffic merging into the southbound lane of Mission. No stop sign was present along the merging lane. At the point where defendant entered Mission there was only one southbound lane. A short distance from that point, Mission widens to two lanes southbound, and one land northbound. After defendant had driven some 332 feet south on Mission his car was struck from behind by a car driven by Hervey Chairez. Mrs. Kaven was thrown from defendant's car. The Chairez car spun off the roadway onto the unimproved area adjacent to the southbound lanes. Defendant's car crossed into the northbound lane and collided with a car driven by Augustin Martinez. Seated next to Martinez was his father Rafael Martinez. Both men were killed. Jose Martinez, a brother of the driver, and Heriberto Rodriquez, a cousin, were in the back seat.

Four witnesses testified as to the events surrounding the collision. In addition, police officer Comp testified to the physical facts of the collision, determined from his investigation.

Defendant Harris, who was 76-years old at the time of the accident, testified as follows: He drove his car east on Nursery Street and approached Mission Boulevard at a speed of 30--35 miles per hour. He followed the curving lane provided for traffic merging into the southbound lane of Mission, maintaining the same speed. As he traversed the curve, he looked to his left and observed no southbound traffic on Mission. He made no observation as to traffic to his rear at this intersection. After he entered Mission and up to the time of impact he did not look into his rear view mirror to determine traffic conditions behind him. He could not recall if he was conversing with Mrs. Kaven at that time. After his car was on Mission he increased his speed to approximately 35--40 miles per hour. He proceeded south on Mission on that portion of the roadway just next to the right shoulder, and continued in the lane farthest to the right both before and after passing a point where Mission widens to two lanes southbound. It was his intention to stay in the right lane; he did not plan to turn until reaching Niles Canyon Road, about one mile away. He was not confused about where he was going.

After he had driven 332 feet south on Mission his car was struck from the rear by the Chairez automobile. At all times prior to the impact, he had remained completely within the lane farthest to the right, the slow lane. At no time prior to the impact had he changed his course within that lane or applied his brakes or slowed down. The impact was of such force that it snapped his head back, stunning and dazing him, and pushed his car forward at an angle toward the left. He felt as though the Chairez car had continued to push his car along for two or three seconds during which time he tried to keep his car on the right side of the road. He could not remember if he had applied his brakes, although he initially told the police that he had. He was unsuccessful in that effort to keep the car on the right side of the road and the car was shoved to the opposite side of Mission where it collided with the Martinez car.

Mrs. Kaven's testimony supported that of defendant. She testified that defendant drove at approximately 30--35 miles per hour. She felt that the speed during the drive was consistent. The car at the time of the first impact was in the right hand lane. Prior to impact she did not observe the car that struck defendant's car. She lost consciousness after this impact and her next recollection was awakening on the pavement.

Heriberto Rodriquez, a passenger in the back seat of the Martinez car, testified through an interpreter. He testified as follows: He first saw defendant's vehicle when it entered Mission Boulevard. At that time defendant was traveling at about 40 miles an hour. Defendant entered the fast lane or center lane, at the point where Mission became two lanes southbound. Defendant's car was struck as it was moving from the fast lane into the slow lane at a point in the center of the broken white line dividing the two southbound lanes. Defendant had slowed down to enter the slow lane. The witness further testified that he did not see Harris give any lane change signal prior to the first impact, and that after the impact defendant's car went into an arc toward the outside shoulder and turned in toward the center of the road, crossing the highway and coming into the northbound lane. Chairez' car did not remain connected to defendant's car after the first impact. Defendant's car kept going by itself. Defendant's vehicle was damaged on its right rear side, Chairez' vehicle on the left front, and Martinez' car in the front and on the left side. Rodriquez indicated that at the time of the first impact Augustin Martinez had slowed down. At no time did the Martinez car leave the northbound lane.

The record reflects that this witness had completed two years of university training and had studied various sciences and mathematics. He had ten years of driving experience.

Hervey Chairez also testified through an interpreter. He testified that he saw defendant make the rurn from Nursery onto Mission, and proceed from the single lane into the fast lane. Chairez was in the single lane at that time, and continued into the slow lane. Chairez gained on defendant, and suddenly defendant slowed down and moved into the slow lane. At this point, Chairez was about 50 feet behind defendant, and traveling at about 40 miles an hour. Chairez saw the brake lights of defendant's vehicle go on as defendant changed lanes. Chairez then applied his brakes and turned toward the right. The impact occurred. Chairez' car separated very rapidly from defendant's car and skidded off the road, landing some ten feet from the right edge.

Chairez was determined to have been under the influence of alcohol at the time of the accident to the extent that his blood alcohol level was .23. Police officer Comp indicated that Chairez was traveling between 50--60 miles an hour at the time of the accident. The posted speed limit was 50 miles an hour. The police officer and Chairez disagreed in their testimony as to whether Chairez assented to the taking of blood, who took the blood, and whether Chairez had given a statement directly to the officer or to a Portuguese who had questioned Chairez in a mixture of Spanish and Portuguese. The officer found that the first point of impact was somewhere in the slow lane. He noted damage to the left front and left side of the Chairez' vehicle, damage to the right rear and left front of defendant's vehicle, and damage to the entire front end of the Martinez vehicle.

Procedural Background

Plaintiffs, the surviving passengers from the Martinez vehicle, and the heirs of those killed in that car, filed a complaint against Harris, Mrs. Kaven, and Chairez. Mrs. Kaven was subsequently granted a summary judgment. Previously Harris and Mrs. Kaven had filed separate actions against Chairez. These actions were all consolidated for trial.

The jury returned a...