Merry v. Knudsen Creamery Co.

• Decision Date: 21 November 1949
• Citation: 94 Cal.App.2d 715,211 P.2d 905
• Court: California Court of Appeals Court of Appeals
• Parties: MERRY v. KNUDSEN CREAMERY CO. et al. Civ. 17256.

Page 905

211 P.2d 905

94 Cal.App.2d 715

MERRY v. KNUDSEN CREAMERY CO. et al.

Civ. 17256.

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

Nov. 21, 1949.

Rehearing Denied Dec. 19, 1949.

Hearing Denied Jan. 19, 1950.

William K. Young, Los Angeles, for appellant.

Reginald I. Bauder and W. I. Gilbert, Jr., Los Angeles, Henry F. Walker, Los Angeles, of counsel, for respondents.

WHITE, Presiding Justice.

Plaintiff has appealed from a judgment for defendants entered upon the verdict of a jury in an action for damages for personal injuries arising from an automobile accident.

On the morning of September 2, 1947, plaintiff, who was driving his automobile southerly on Western Avenue in the City of Los Angeles, approached the intersection of 54th Street, where traffic signals were in operation. The signal changed to 'Stop' for traffic on Western Avenue, and plaintiff halted his automobile behind several other vehicles in the traffic lane adjacent to cars parked along the west curb of Western Avenue. Within a short interval, from 'a second or two' to 'half a minute', a truck owned by defendant Knudsen Creamery Company, and operated by defendant Glenn I. Brunk struck the rear of plaintiff's car, driving it into the car ahead.

Defendant truck driver testified that he was following plaintiff's car and applied his brakes when he was about 50 feet behind plaintiff's car and traveling between 25 and 30 miles per hour; that at first the brakes took effect, but that as he continued to push down on the brake pedal, 'it just kept going down and kept going out the more I pushed on it.' It was not shown by the evidence precisely what was the difficulty with the brakes. The defendant driver testified that on the evening before the day of the accident he observed a slight slack in the brake pedal, reported it, and it was adjusted on the night before the accident. On the morning of September 22, he drove the truck from 21st and Santee Streets to 21st and Broadway, thence down Broadway to Santa Barbara, thence west on Santa Barbara to Western, and south on Western to the scene of the accident; that during that time he experienced no difficulty with the truck's hydraulic brakes. With respect to the action of the brakes immediately before the accident, he testified that he first discovered that the brakes were not going to hold when he tried to stop behind the plaintiff's car and was forty to fifty feet behind the same. He saw plaintiff's car being brought to a stop and slowed his vehicle from 25 to 30 miles per hour to about 15 to 20 miles per hour, at which time the brakes failed completely.

Appellant assigns as grounds for reversal the following: '(1) The court erroneously instructed the jury that the fact the accident happened was not evidence of negligence. (2) 'The court erred in instructing the jury respecting an unavoidable accident.' (3) 'The evidence was insufficient to justify the verdict.'

The court instructed the jury in part as follows:

'While there are two defendants in this action, one of them, Knudsen Creamery Company, has been sued herein because, as has been established, it was the principal for whom the other defendant, Glenn I. Brunk, was acting as agent, and within the scope of his authority at the time of the events out of which the accident occurred. It follows, therefore, that if one is liable, both are liable. * * * It has been established that the defendant Glenn I. Brunk was acting as agent for said corporation and within the scope of his authority at the time of the events out of which the accident involved in this case occurred. Hence your verdict must be the same as to both said defendants, either in favor of both or against both in one sum.

'* * * The mere fact that an accident happened, considered alone, does not support an inference that some party, or any party, to this action was negligent.

'In law we recognize what is termed an unavoidable or inevitable accident. These terms do not mean literally that it was not possible for such an accident to be avoided. They simply denote an accident that occurred without having been proximately caused by negligence. Even if such an accident could have been avoided by the exercise of exceptional foresight, skill or caution, still, no one may be held liable for injuries resulting from it.'

The court then read to the jury section 670(a) of the Vehicle Code, which provides that no person shall operate on any highway a vehicle unless such vehicle be equipped with brakes adequate to bring the vehicle to a stop within specified distances at specified speeds, and instructed the jury as follows:

'Conduct which is in violation of Section 670a of the Vehicle Code of the State of California just read to you constitutes negligence per se. This means that if the evidence supports a finding and you do find that a person did so conduct himself, it requires a presumption that he was negligent. However, such 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, justifiable and such as might reasonably have been expected from a person of ordinary prudence. In this connection, you may assume that a person of ordinary prudence will reasonably endeavor to obey the law and will do so unless causes not of his own intended making induce him, without moral fault, to do otherwise.'

The record further discloses that after the jurors had deliberated for about an hour and a half, they returned into court, whereupon, in the absence of counsel, the following discussion took place:

'The Court: Ladies and gentlemen, I have been handed a question from Mr. Glenn H. Lyle, a member of the jury, which states as follows: 'If the defendant's driver, Brunk, was himself not negligent, must we bring in a verdict for the defendant?'

'Pursuant to the instructions given to you that when there is a principal and an agent in operation of a series of events, an action is filed as it is in this instance against both the principal and the agent, the principal in this event being Knudsen Creamery Company, the agent in this event being Mr. Brunk, the defendant, it is your duty should you find that there was negligence and that as a result of that negligence and the proximate--and from the proximate cause thereof--that is, the negligence proximately caused the accident, then you are instructed that you are to bring a verdict against both defendants, that the agent and the principal in this particular matter are negligent, if you should find that there is negligence. Mr. Lyle, does that answer your question?

'Mr. Lyle: It does to me.

'Juror No. 5: If one of them is negligent and the other is not--if we find that one is negligent and the other is not, do we clear them both?

'The Court: Under the instructions herein it would be impossible for you to find that the accident occurred from the negligence of merely one; if there was negligence in this instance it was the negligence of the agent as well as the principal, not only the principal or only the agent.

'Another Juror: Your Honor, maybe I am asking this question out of turn; this question is not the question under discussion, but is this----

'The Court: (Interrupting) Well, I don't think I can go into the discussion with you. I would like very much to, but you will notice that counsel are absent here and they have stipulated that should the jury desire further instructions we could do so without their presence; however, I do not feel that it would be right for me to listen to the discussion had or any part of it by you in the jury room at this time. However, you are instructed--and you must follow the instructions of the Court--that if one is negligent in this instance that both are negligent, or if they both are not negligent, neither one is negligent.'

The court then reread the instructions hereinbefore quoted in part concerning the principal and agent relationship between the driver and the creamery company. Thereupon the following took place:

'Juror No. 2: This question probably might clear it up: Mr. Brunk is not sued in the action with Knudsen Dairy, is that correct?

'The Court: No, both are sued; both are defendants. The action is by Mr. Merry against Knudsen Creamery Company and Glenn I. Brunk, both being defendants, and if the judgment is against one, it shall be against both. Do you have a question?

'Juror No. 1: Well, no,...