Meyer v. Blackman

• Decision Date: 29 May 1963
• Citation: 381 P.2d 916,31 Cal.Rptr. 36,59 Cal.2d 668
• Parties: , 381 P.2d 916 Thelma MEYER, Plaintiff and Appellant, v. Gippie R. BLACKMAN et al., Defendants and Respondents. L. A. 27158.
• Court: California Supreme Court

Page 36

31 Cal.Rptr. 36

59 Cal.2d 668, 381 P.2d 916

Thelma MEYER, Plaintiff and Appellant, v. Gippie R. BLACKMAN et al., Defendants and Respondents.

L. A. 27158.

Supreme Court of California, In Bank.

May 29, 1963.

Henry E. Kappler, Los Angeles, for plaintiff and appellant.

Gilbert, Thompson & Kelly, George A. Kuittinen and Jean Wunderlich, Los Angeles, for defendants and respondents.

PEEK, Justice.

This is an appeal by plaintiff Thelma Meyer from a judgment of nonsuit in a wrongful death action following the fatal injury of her 16 year-old son, Henry Carl Meyer, Jr., who died shortly after an automobile in which Henry had been riding was involved in a collision.

At the outset it must be remembered that a nonsuit may be granted '* * * 'only when, disregarding conflicting evidence and giving to plaintiff's evidence all the value to which it is legally entitled, herein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of plaintiff if such a verdict were given. " (Estate of Lances, 216 Cal. 397, 400, 14 P.2d 768.) Thus, 'while in most appeals it is the duty of the reviewing court to indulge every reasonable intendment in favor of sustaining the trial court, substantially the reverse is true when the appeal is from an order of nonsuit. In the latter case the appellate court must view the evidence as through judgment had gone in favor of the appellant, and order a reversal if such a judgment can be sustained.' (Raber v. Tumin, 36 Cal.2d 654, 656, 226 P.2d 574, 575; see also Jones v. Hotchkiss, 147 Cal.App.2d 197, 204-205, 305 P.2d 129.)

With this in mind we turn to an examination of the record. Raymond Lewis Wood, who was 18 years old, was hired by defendants on or about December 30, 1958, as a part-time light mechanic and lot boy at their used car lot in Pomona. His duties included such tasks as keeping the cars clean, performing minor mechanical repairs, driving defendants' vehicles to a nearby service station operated by James Ballou to purchase gasoline, test-driving some vehicles he had repaired, and driving cars on errands for his employers.

A police officer testified on behalf of plaintiff that he had observed Wood in a car parked at a doughnut shop in Pomona on a Sunday afternoon prior to the fatal collision. Since the officer, who was acquainted with Wood, did not recognize the automobile, he questioned Wood and was told the vehicle 'was Mr. Blackman's car, that he (Wood) was employed there.' The officer then followed Wood to the lot and Blackman verified Wood's statement. According to the officer, Blackman stated that Wood had been given permission to take the car; that Wood worked on the vehicles and 'was a real good mechanic, and usually when he did some work on them he took them out and tested them to see if they functioned right.'

Defendants admitted that on the day of the collision, January 12, 1959, Wood was in their employ, that he performed duties, and that he had been authorized to drive one or more of their vehicles. Defendant Blackman testified that 'on this particular day he was sent on an errand.' It could be inferred that the errand in which he was engaged when the collision occurred was to pick up a tow chain at the 'Pep Boys' parts store, located a number of blocks from the car lot. Defendants also conceded that at some time during the period of his employment Wood had made a minor adjustment on the clutch of the collision vehicle, a 1952 Studebaker.

The car lot is located approximately one block east of Hamilton Boulevard, a north-south street in Pomona. The lot faces Fifth Avenue, which runs east and west and crosses Hamilton Boulevard approximately 300 feet west of it. Fifth Avenue, at its intersection with Hamilton where the collision occurred, is a main traffic artery with a red-green-yellow traffic signal. The parts store where Wood had been sent by defendants was located on Second Street and Park Avenue, which is north and east of the car lot. Thus it would seem that the shortest route to the parts store, starting from the car lot, would have been to drive east on Fifth Avenue to Park and thence turn left and drive north on Park the three blocks to Second.

However, Blackman conceded that if one were at the Ballou service station at the corner of Fifth and Hamilton, or if one were south of Fifth on Hamilton Boulevard, it would be 'about as direct * * * to go north on Hamilton to Second, and then right and east to Pep Boys.' A charge slip signed by Wood and dated January 12, 1959, shows he purchased gasoline on defendants' credit at the Ballou service station sometime that day but before the accident. There was no evidence that Wood was directed to follow a prescribed route to the parts store. However, it does appear from testimony that the Studebaker was seen moments before the accident traveling north on Hamilton at high spped near the intersection of Ninth Street, which is south of Fifth.

When observed on Hamilton at Ninth Street the Studebaker was traveling at an estimated speed of 65 to 70 miles per hour. It was then only four blocks south of Fifth and proceeded at the latter speed through a blinking yellow caution signal marking a school crosswalk. Approximately 20 young children were then departing fron school and standing alongside Hamilton Boulevard or crossing Ninth Street walking parallel to Hamilton. The witness further testified that as the Studebaker approached the yellow caution signal there was '(m)aybe a slight increase' in its speed.

One eyewitness to the collision testified that the Studebaker entered the intersection at Fifth Street At approximately 60 miles per hour against the red light, and there was no indication that the vehicle 'was skidding or sliding before the impact.' Another eyewitness testified that 'it didn't look like any (brakes) were applied at all.' The clearly posted speed limit at that point, with which it can be assumed Wood was entirely familiar because of his employment and the evidence that he frequented that area, was 35 miles per hour. Wood also must have known that Fifth Avenue was one of the thoroughfares through Pomona, and that, as observed by a witness who worked on that corner, many accidents occurred at the intersection of Fifth and Hamilton. In addition there were then pedestrians alongside the intersection and in the crosswalks, several of whom were injured by the careening automobile.

The Studebaker collided with a large gravel carrying truck and trailer vehicle that was proceeding west on Fifth, and had entered the intersection on the yellow caution light. The automobile struck behind the body of the truck and in front of its trailer, so that the front dual wheels of the trailer ran over the car and it was then wedged, according to an investigating police officer, 'between the right rear duals and the spring.' The spring shackles of the trailer were then torn loose and the car was run over the the rear dual wheels and thrown against a traffic signal pole, knocking the pole down. The pole was struck by the right side of the car. One of the occupants was, according to an eyewitness, 'on the curb, (and) the car was pushed against the curb with his body in between.' The other occupant apparently was thrown onto the sidewalk.

An investigating officer testified that the steering wheel of the automobile was damaged very little. The officer further stated that in his opinion 'the heavy blow was taken by the right side of the car,' and it appears from exhibits that, compared to the remainder of the vehicle, damage to the driver's area was moderate. The extent of Wood's injuries does not appear in the record; however, he was able to testify at the coroner's inquest. Hospital records show that when Henry was admitted to the hospital he was 'in critical condition.' He was unconscious, did not respond to pain, and had multiple fractures. He was also breathing with great difficulty, and died less than five hours after admission. The deceased did not have a driver's license.

There was testimony that Henry was at the Ballou service station some minutes prior to the collision, from which it could be inferred that from there he was allowed or invited by Wood to ride in the Studebaker.

There was evidence indicating that Wood was often in and around the Ballou service station and that he drove at high rates of speed. One of the employees testified: 'Sometimes he would come in and almost slam his brakes on; other times he would leave by burning rubber and leaving black marks in the islands, and other times he would drive in and drive out as any sane person would, too.' The employee also testified that as Wood left the station one day, '(H)e burned rubber leaving, and he burned rubber probably all the way across the street, and then I could hear the motor accelerate fast. As he shifted into second gear, I could hear the rubber burn; from there on, I could hear him until the traffic around us deadened it.' James Ballou, lessee of the station, testified that Wood on one occasion 'was dragging through the station.' Ballou further stated that he observed Wood driving defendants' automobiles 'fast,' and at 'excessive' speeds near the intersection of Fifth and Hamilton; that 'if he had a light with him * * * he would travel right on across, and I imagine if there was a speed limit he would surely be going that, the way, I've ever seen him drive.'

Although, as noted, defendants admit Wood was in their employ and had been sent on an errand on the day of the accident, they do not admit that he was driving at that time. However, when the evidence is viewed in light of the stated rules, the jury could properly have inferred that Wood was the driver and that decedent Henry was the guest. Wood was entrusted to drive the Studebaker, and only he held an operator's license. Also, the extensive...