McMahon v. Kern County Union High School and College Dist.

• Decision Date: 17 April 1957
• Court: California Court of Appeals Court of Appeals
• Parties: Kenneth W. McMAHON, Plaintiff and Appellant, v. KERN COUNTY UNION HIGH SCHOOL AND COLLEGE DISTRICT and Jerry Dyer Horne, Defendants and Respondents. Civ. 5386.

Page 465

309 P.2d 465

150 Cal.App.2d 218

Kenneth W. McMAHON, Plaintiff and Appellant, v. KERN COUNTY UNION HIGH SCHOOL AND COLLEGE DISTRICT and Jerry Dyer Horne, Defendants and Respondents.

Civ. 5386.

District Court of Appeal, Fourth District, California.

April 17, 1957.

Oscar F. Catalano, Bakersfield, Merle H. Jenkins, Oildale, and Herbert Chamberlain, San Francisco, for appellant.

Borton, Petrini, Conron & Brown, Bakersfield, for respondents.

MUSSELL, Justice.

This is an action to recover damages for personal injuries sustained by plaintiff as a result of a collision between an automobile in which he was riding and a school bus. The accident happened at the intersection of Wegis Road and Rosedale Highway in Kern county. A jury returned a verdict for defendants and plaintiff appeals from the judgment thereupon entered.

Rosedale Highway is an east-west state highway with two 12-foot traffic lanes, separated by a broken white line. Wegis Road runs north and south. It is a county road with two traffic lanes, each 7 1/2 feet wide. There is a house occupied by the Hodel family 396 feet north of the north lane of Rosedale Highway and on the west side of Wegis Road. There were no stop signs at the intersection and there was a clear view diagonally across the northwest corner.

At about 7:00 a. m. on May 17, 1954, plaintiff, on his way to work, was a passenger in a 1941 Chrysler sedan owned and being driven easterly on Rosedale Highway by William J. Hampton when the automobile struck a school bus being driven south on Wegis Road by Jerry D. Horne, an employee of defendant school district. The point of impact was approximately 5 feet south of the center of Rosedale Highway and approximately even with a line projected south from west edge of Wegis Road on the north side of the highway. The initial point of collision between the vehicles took place between the left front fender of the Chrysler and the right front corner of the bus. The Chrysler was traveling so fast that it pivoted and drug the bus at right angles so that it was headed east after the accident and the left front wheel of the bus was pushed sideways a distance of 36 feet.

Horne was an experienced bus driver and on the morning of the accident was picking up students on his regular route for the school district. He had stopped at the Hodel home, 396 feet north of the intersection to pick up a student. Between that point and the point of collision his bus was in second gear and he did not reach a speed of over 20 or 25 miles per hour between these two points. He looked to the west on Rosedale Highway as he left the Hodel home and again when approximately 200 feet north of the intersection, but saw no eastbound traffic. As he was entering the intersection, he was traveling about 10 miles per hour and saw the Hampton car. It was then west of the intersection. When Horne saw it, he applied his brakes and skidded all four wheels of the bus to the point of impact.

Emmitt E. Worthen testified that at the time of the accident he was irrigating alfalfa on the northeast corner of the intersection involved and about 375 feet from it; that the bus stopped at the Hodel house and picked up the girl who lived there; 'I watched the bus, and it picked up the girl, and it started on or going on south, and it sure wasn't driving very fast at all. I would say it never did get over 20 miles and, when it got there, why, it Hodel girl until it entered the intersection; and, when it got where, why, it slowed down to almost a stop but didn't stop plumb still, and it drove on out into the intersection of Rosedale Highway, and it got up--I would say the front wheels was approximately 3 or 4 feet, the best I could see, from the white line in the center of the Rosedale Highway, and I looked up the highway, Rosedale Highway, west, and I seen this car coming, and it wasn't--I don't believe it was over 150 feet away when I seen it, and I said to myself, 'Oh, My God' next'; that he heard the crash and the car hit the bus on the right front fender and whirled it down the Rosedale Highway in the direction the automobile was headed; that the bus entered the intersection at a speed of 3 to 5 miles per hour; that at the time he first saw the automobile, the bus had entered the intersection and the front end of it was not over 3 feet from the white line; that at that time the automobile was about 150 feet west of the intersection; that it 'was doing well over 50 miles per hour'.

Plaintiff testified that he was around two blocks from the intersection when he first saw the bus and it was then about 3 blocks north of the intersection; that he did not see it again before the accident and that he was looking down the right-hand side of the road.

The first ground upon which appellant relies for reversal of the judgment is that the evidence established as a matter of law that the defendants were guilty of actionable negligence, and therefore the judgment against plaintiff should be reversed. There is no merit to this contention.

In Negra v. L. Lion & Sons Co., 102 Cal.App.2d 453, 458, 227 P.2d 916, 919 it is said:

'Generally speaking, the degree of care required under any given circumstances and the question as to whether or not that degree was attained by one charged with negligence is a question of fact for the jury and not a question of law. Malone v. Clemow, 111 Cal.App. 13, 295 P. 70. Negligence of a defendant, like contributory negligence of a plaintiff, is generally a question of fact for the determination by the trier of fact whose finding will not be disturbed on appeal if there is substantial evidence to support it. McWane v. Hetherton, 51 Cal.App.2d 508, 511, 125 P.2d 85.'

And as is said in Butcher v. Queen City Iron & Metal Co., 99 Cal.App.2d 25, 27, 221 P.2d 265, 267:

'Whether defendant was negligent or plaintiff contributory negligent are questions of fact for the determination of the jury whose finding supported by substantial evidence will not be reversed on appeal. (Reinders v. Olsen, 60 Cal.App. 764, 767, 214 P. 268; McStay v. Citizens Nat. T. & S. Bank, 5 Cal.App.2d 595, 600, 43 P.2d 560.)'

It is only when the facts are clear and indisputable, and when no other inference than that of negligence or contributory negligence can be drawn from the facts that the issue becomes one of law and not of fact. McQuigg v. Childs, 213 Cal. 661, 663, 3 P.2d 309; Kazanjian v. Pacific Greyhound Lines,...