Napoli v. Hunt

• Decision Date: 23 May 1956
• Court: California Court of Appeals Court of Appeals
• Parties: Bartoio NAPOLI, Plaintiff and Respondent, v. Eleanor HUNT, Defendant and Appellant. Civ. 5306.

Page 653

297 P.2d 653

141 Cal.App.2d 782

Bartoio NAPOLI, Plaintiff and Respondent, v. Eleanor HUNT, Defendant and Appellant.

Civ. 5306.

District Court of Appeal, Fourth District, California.

May 23, 1956.

Hansen, McCormick, Barstow & Sheppard, Fresno, for appellant.

David E. Peckinpah, Denver C. Peckinpah, and Louis W. Caporale, Jr., Fresno, for respondent.

MUSSELL, Justice.

This is an action for damages for personal injuries sustained by plaintiff in a collision of automobiles at a rural intersection and the sole question involved in this appeal is whether the evidence is sufficient to support the findings and judgment in favor of the plaintiff.

The collision occurred at approximately 7:45 a. m. on May 25, 1954, and the point of impact was established as being in the southwest quadrant of the intersection of Belmont Avenue and Grantland Street in Fresno county. Belmont Avenue runs east and west and intersects Grantland Street at right angles. Both streets are paved and at the time of the accident there were no stop signs on either street at the intersection. It was an open intersection and, while there was a growth of wheat or oats on the northwest corner, the grain was not high enough to obstruct the view of the drivers of the two cars involved. Belmont Avenue is 21 feet wide with a broken white line down the center and Grantland Street is 15 feet wide and is not divided by a white line. The weather was clear and both streets were dry. The intersection was in a 55 mile an hour prima facie speed zone.

Plaintiff was driving a 1953 Buick sedan in an easterly direction in the south traffic lane on Belmont Avenue and defendant was driving south on Grantland Street in her 1951 Chevrolet sedan. Plaintiff was on his way to work and defendant was on her way to school, where she was employed as a teacher. Betty Ruth Doerksen, another teacher, was riding with her at the time. Both plaintiff and defendant were familiar with the intersection involved. The Buick left skid marks on the pavement, measuring 42 feet leading to the point of impact and extending therefrom an additional 39 feet in a southeasterly direction. There were no skid marks left by the Chevrolet. It traveled approximately 55 feet after the impact.

A traffic officer, who arrived at the scene within a few minutes after the accident happened, spoke to both plaintiff and defendant. Plaintiff told him that he was going east on Belmont at about 50 miles per hour and did not see the other car. When questioned about the brake marks left by his Buick, he told the officer, 'If it was his brake marks he must have put on his brakes, but he didn't remember it. He was very, very vague.'

Plaintiff suffered severe brain damage in the collision. The medical testimony at the trial was that 'He had a so-called subdural hematoma, which is a collection of blood or fluid, or both, located in a space between the brain and the dura, which is the tough covering over the brain which separates it from the skull.' Surgery was performed three or four weeks after the accident to relieve the pressure on the brain by removing and draining the blood from the congested area, and it was found that plaintiff's brain was depressed downward about one inch.

Plaintiff testified at the trial and upon being asked what he remembered about the accident, stated, 'Well, clearly, I remember standing beside my car, a little distance from the car, within an arm's reach, I think, and I was looking down at the two ladies that were on the ground and the first thing I was trying to, I was struggling mentally to piece the picture together, just what was before me, how I was there and how the ladies were there. It was almost impossible to put together immediately. I couldn't understand at the time why it was such a puzzle, but it was something important for me to figure out. That's the first thing I recall, trying to piece the picture together'; that he remembered talking to the highway patrol officer and remembered that he could not figure out the reason for the skid marks; that he had not recalled putting on the brakes.

The defendant told the officer at the scene that 'she hadn't seen any car'; that they 'had stopped at the stop sign and started out when they were struck.' However, at that time there was no stop sign at the intersection. Defendant failed to appear at the trial, after having been served with a subpoena, and it was stipulated that her deposition be used in lieu of her appearance and testimony in court. In her deposition she stated, on being asked as to the last thing she remembered prior to the accident, 'I remember going out Grantland to go to school. I remember that I turned off Belmont and went off Olive and I went south and that I looked to see if anything was coming, and then I heard them talking about an ambulance. That's all I remember.' On the morning following the accident the statement of defendant concerning the accident was taken down by a shorthand reporter and in it defendant stated that she did not know how fast her car was going and did not know there had been an accident until she heard about it; that the accident happened between a quarter to eight and eight o'clock; that she never saw the other car or the driver. Betty Ruth Doerksen testified that she did not remember the day of the accident; that she had had a complete loss of memory for three days and had no recollection of the accident.

The trial court found that the accident was caused by the carelessness and negligence of the defendant and that it was not true that plaintiff drove or operated his automobile in a negligent manner, or that any carelessness or negligence of the plaintiff contributed to the collision. Judgment was entered in accordance with these findings and defendant appeals therefrom.

Appellant's contention that plaintiff was guilty of contributory negligence as a matter of law and that his negligence contributed to the accident, thus precluding his recovery, is not supported by the record. The rule on this subject is cited in Anthony v. Hobbie, 25 Cal.2d 814, 818, 155 P.2d 826, 829, as follows:

'The burden of proving contributory negligence is upon the defendant. 19 Cal.Jur. 697-699. True, contributory negligence may be found by the trier of fact from the plaintiffs' own evidence. But cases in which it can be said that the negligence of plaintiff contributes proximately to the accident as a matter of law are rare. The rule has been stated in various ways in a legion of cases, that contributory negligence is not established as a matter of law unless the only reasonable hypothesis is that such negligence exists; that reasonable or sensible men could have drawn that conclusion and none other; that where there are different inferences that may be drawn, one for and one against, the one against will be followed; and that before it can be held as a matter of law that contributory negligence exists, the evidence must point unerringly to that conclusion.' (Citations.)

We cannot here say that the evidence points unerringly to the conclusion that plaintiff was negligent. Plaintiff, by reason of the injuries which he sustained in the collision was unable to remember the circumstances surrounding it and there was substantial evidence to support this conclusion. The plaintiff was therefore entitled to the presumption of due care and this is conceded by appellant in her opening brief.

In Russell v. Andersen, 101 Cal.App.2d 684, 694, 226 P.2d 350, 357, the court, quoting from Simon...