Menchaca v. Helms Bakeries
Decision Date | 22 November 1967 |
Citation | 64 Cal.Rptr. 49 |
Court | California Court of Appeals |
Parties | Richard MENCHACA et al., Plaintiffs and Appellants, v. HELMS BAKERIES, Defendant and Respondent. Civ. 30458. |
Lawrence William Steinberg, Beverly Hills, and Martin Sosin, Los Angeles, for plaintiffs and appellants.
George A. Kuittinen, North Hollywood, and Jean Wunderlich, Los Angeles, for defendant and respondent.
This is an action for wrongful death. Plaintiffs are appealing from the judgment which followed a jury verdict for defendant.
Plaintiffs Richard and Barbara Menchaca were the parents of 22-month-old Richard Menchaca, Jr., who was killed when struck by a truck owned by the defendant Helms Bakeries.
On September 30, 1963, the defendant's driver was making a delivery to the Blanchard home on Morningside Street in Mar Vista. The driver testified that as he turned the corner onto Morningside, he sounded his whistle and four children began running down the Blanchard driveway. He pulled over to the left side of the street and parked at the Blanchard driveway so the approaching children would not have to cross the street to reach his truck. The driver saw four children approach the truck, the two Blanchard children and two Menchaca children, sisters of the deceased Richard. The driver made a sale to another little girl whom he saw go home. After handing bread and doughnuts to the Blanchard children the driver turned toward the rear of the truck, shut the bread and recorded the transactions in a book. When he turned toward the front of the truck he saw that the four children were safely standing in the driveway. He then started the truck. As the truck moved forward it passed over the body of Richard who apparently had been standing in front of the left front wheel. The driver testified that at no time prior to the accident had he observed Richard. This was corroborated by a neighbor who saw Richard go down the Blanchard driveway to the left front of the Helms truck while the driver's back was turned.
Plaintiff Barbara Menchaca, the mother of Richard, testified that she and the children were visiting the Blanchard home. For ten minutes before the accident, Richard, his sisters and the two Blanchard children were playing in the backyard of the Blanchard home. The oldest child of this group was five years of age. The backyard was enclosed by a fence. The gate to the fence was locked but all of the children except Richard were able to open the latch. When she discovered that the yard was empty, she went outside to investigate. As she came down the driveway Mrs. Menchaca saw the four older children standing at the foot of the driveway and heard a scream. At that moment the truck ran over Richard.
I--Effect of instructions on negligence
Plaintiffs' appeal is based in part upon a claim of error in the jury instructions on the issue of the defendant's negligence. Defendant argues that no such claim of error need be considered. Defendant contends that the verdict of the jury could have been based either upon a finding that defendant was not negligent, or a finding that the plaintiff parents were guilty of contributory negligence; and that the court must assume in favor of the judgment that the jury found in defendant's favor on the latter issue, so that any error with respect to the other issue would be harmless. As authority for this proposition defendant cites Nigro v. West Foods of California, 218 Cal.App.2d 567, 571, 32 Cal.Rptr. 692; Thompson v. Casaudoumecq, 205 Cal.App.2d 549, 23 Cal.Rptr. 189, and Philpott v. Mitchell, 219 Cal.App.2d 244, 255, 32 Cal.Rptr. 911. The Nigro and Thompson cases are not in point, for they do not consider the effect of procedural error. Those cases hold that if the evidence is sufficient to support the verdict on one theory, it is unnecessary to consider the sufficient on any alternative theory. The Philpott case does support defendant's argument, but the court which decided Philpott thereafter reached the opposite conclusion in Hudspeth v. Jaurequi, 234 Cal.App.2d 526, 528, 44 Cal.Rptr. 428.
In Hudspeth the trial court erred in failing to give proper instruction on the negligence issue. The opinion says at page 528, 44 Cal.Rptr. at page 429:
'* * *
'The judgment is reversed.'
The two decisions of the Supreme Court, cited in Hudspeth, support the view that erroneous instructions on one issue, which may have been the basis of the verdict, may be ground for reversing the judgment.
II--Claimed error in instructions
(a) Plaintiffs contend that the trial judge erred in refusing their request to instruct the jury:
'California Vehicle Code, Section 27001, in effect at the time of the accident, provided in relevant part as follows: 'The driver of a motor vehicle when reasonably necessary to insure safe operation shall give audible warning with his horn.''
This requested instruction quotes only a portion of the code section. The omitted sentence reads 'The horn shall not otherwise be used.' The statute, read as a whole, indicates that the horn is not to be used unless some particular circumstance calls for it. To tell the jury that the first sentence of the section alone is the 'relevant part' would be misleading in the context of this case. The driver testified that he saw only five children, and he observed that all had returned to a position of safety before he started his vehicle. The jury could have concluded that the driver had no more reason to sound his horn on this occasion than would any other driver starting such a vehicle in a residential area. Under the general instructions on the subject of negligence the jury was of course at liberty to consider whether failure to sound a horn in this instance violated the standard of the reasonable man. But to have presented the issue to the jury in terms of the Vehicle Code section, it would have been necessary to include the qualification contained in the second sentence.
The cases relied upon by plaintiffs deal with other kinds of situations.
In Rush v. Lagomarsino, 196 Cal. 308, 320, 237 P. 1066, it was error to refuse to give a requested instruction quoting the complete code section. The evidence there showed the defendant was driving in the dark, without lights, through a crosswalk where he had reason to expect pedestrians.
In Jones v. Maynard, 141 Cal.App.2d 643, 297 P.2d 461, it was error to refuse to give an instruction on the complete code section. There was evidence that the defendant knew plaintiff was somewhere close to the truck when it started.
In Weiss v. Baba, 218 Cal.App.2d 45, 32 Cal.Rptr. 137, failure to give an instruction based on the first sentence of section 27001 was held to be error. The second sentence of the section is not mentioned in the opinion, and it does not appear that anyone raised the contention that this made the proposed instruction defective. The case involved a nighttime collision of two vehicles at an intersection where visibility was limited by hedges, trees and parked cars. Defendant had admitted that he had seen the lights of the plaintiff's vehicle. This is a fact situation quite different from the case at bench, where the defendant testified without contradiction that he was unaware of anyone's presence.
Closer in point is Trapani v. Holzer, 158 Cal.App.2d 1, 321 P.2d 803, where a judgment for defendant was affirmed, despite the refusal of the trial court to instruct on the use of a horn. The evidence showed that defendant did not see the deceased before the accident. The court said (at pp. 7-8, 321 P.2d at p. 807):
(b) Plaintiffs also argue that the court erred in refusing to give a number of instructions offered by them on the subject of negligence. The court explained negligence in general terms by giving BAJI Nos. 101 (revised), 101-B, 101-C, 102 (revised), and 102-A. It also gave BAJI No. 148, as follows:
These instructions presented the law on the issue of negligence. While other more specific instructions might have been given as requested, the failure to do so could not have affected the jury's understanding of the problem.
Borenkraut v. Whitten, 56 Cal.2d 538, 15 Cal.Rptr. 635, 364 P.2d 467, does not support plaintiffs' contentions here. There it was held to be prejudicial error to refuse to instruct the jury on the extreme caution required of one who pours gasoline into a carburetor, an especially hazardous...
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Menchaca v. Helms Bakeries, Inc.
...Files in the opinion prepared by him for the Court of Appeal, Second District, Division Four, when this case was before that court (64 Cal.Rptr. 49, 51--52(2)), the statute, read as a whole, indicates that the horn is not to be used unless some particular circumstance calls for it. To tell ......