Neyens v. Sellnow

• Decision Date: 25 April 1962
• Citation: 202 Cal.App.2d 745,21 Cal.Rptr. 151
• Court: California Court of Appeals Court of Appeals
• Parties: Lottie B. NEYENS and Howard F. Neyens, Plaintiffs and Appellants, v. Donald William SELLNOW, Defendant and Respondent. Civ. 19686.

Page 151

21 Cal.Rptr. 151

202 Cal.App.2d 745

Lottie B. NEYENS and Howard F. Neyens, Plaintiffs and Appellants, v. Donald William SELLNOW, Defendant and Respondent.

Civ. 19686.

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

April 25, 1962.

Rehearing Denied May 15, 1962.

Hearing Denied June 20, 1962.

Johnson, Thorne, Speed & Bamford, John E. Thorne, San Jose, for appellants.

Robert J. Popelka and B. J. Cougill, by B. J. Cougill, San Jose, for respondent.

SULLIVAN, Justice.

The plaintiffs, husband and wife, brought this action to recover for personal injuries sustained by the wife and property and other damage suffered by the husband, as a result of an automobile collision in which the wife was involved. The jury returned a verdict in defendant's favor. This appeal is from 'the verdict, judgment, and denial of plaintiffs' motion for a new trial. * * *' An appeal does not lie from a verdict (Robins v. Weis (1950) 97 Cal.App.2d 144, 145, 217 P.2d 156) nor from an order denying a motion for a new trial in a civil case. (Rodriguez v. Barnett (1959) 52 Cal.2d 154, 156, 338 P.2d 907; Code Civ.Proc. § 963.) Plaintiffs' attempted appeals therefrom must be dismissed, since the correctness of the verdict and of the order denying new trial is reviewable upon appeal from the judgment.

The accident occurred on August 14, 1957, at about 5:15 p.m. at a point on Race Street in San Jose, opposite a parking lot and driveway of a Sears' store. The weather was clear. Traffic southbound was heavy. A center white line divided the northbound and southbound traffic. There were two southbound lanes of traffic, although they were not marked, and in addition, a parking lane along the west curb. The distance from the west curb to the center line was about thirty feet. On the other side of the line was a lane for northbound traffic about ten feet wide.

The plaintiff Lottie Neyens, accompanied by a guest, was driving south on Race Street and the defendant was driving out of the Sears' parking lot, located on the west side of Race Street, intending to cross over the southbound traffic lanes, turn left and proceed north on Race Street.

The plaintiff testified that she was driving south on Race Street in the inside traffic lane next to the center line. She was familiar with the location of the Sears' store and knew that there were entrances to if from Race Street. She was driving at a speed of about 15 to 20 miles per hour and did not slow down as she came up to the Sears' driveway. She never looked over to the right to see if anyone was coming out of such driveway. She did not know there was an accident until after it happened. She claimed that the 'left-hand side of his front hit my fender and his grill and front hit the side of my fender.' After the accident she noticed a stopped car in the lane to the right of her. She also believed that after the accident the left hand side of her car was across the center line.

The defendant testified that he had just picked up his wife at the Sears' store, had driven out of the parking area, and stopped his car about a foot back of the west curb. The southbound traffic was heavy and moving in two lanes. There were parked cars along the west curb. According to the defendant, he remained stopped for almost a minute making traffic observations to his right and left. He saw little traffic northbound. A southbound car in the nearest or outside lane of moving traffic 'came at an angle like he was going to turn into Sears' parking lot and then he came to a stop.' The defendant then moved out in the street and again came to a complete stop. He saw southbound traffic still going through in the next lane over. He remained stopped and waited for this traffic for about a minute, during which time he estimated that about a 'dozen or more' cars went on by. Then a car in the inside southbound traffic lane stopped and waved defendant through with an arm signal which defendant interpreted as meaning '[t]hat he was going to wait for me to make my turn.' He started 'easing out again' but stopped as another car went by, apparently swinging partially into the northbound lane around the car stopped in the inside southbound lane whose driver had waved defendant on. He started again '[j]ust barely easing out' because the stopped car blocked his view to the left. 'I no more started easing around just like that and I was hit.' Plaintiff's car was being driven partially over the center line and on to the northbound traffic lane when the accident occurred. After both cars had come to a stop, over half of Mrs. Neyens' car was over on the wrong side of the road; defendant's car was about two feet from the line dividing the northbound and southbound. Mrs. Sellnow generally corroborated the above testimony.

The plaintiffs make two contentions on appeal: 1) That the evidence is insufficient to support either the implied finding of the jury that the defendant was not negligent or the implied finding that the plaintiff Lottie Neyens was guilty of contributory negligence; and 2) the court committed prejudicial error in giving an instruction on the applicable prima facie speed limit.

We take up the first contention. It is apparent that the evidence relevant to both the issue of the defendant's negligence and the plaintiff's contributory negligence was the conflict. In each instance the issue presented a question of fact. Plaintiffs now attempt to have us reweight this evidence and analyze the factual conflict. This is not our function. (Berniker v. Berniker (1947) 30 Cal.2d 439, 444, 182 P.2d 557.)

On the issue of the defendant's negligence, appellants ask: 'Was the evidence sufficient to warrant a finding of negligence on the part of respondent (defendant)?' This is not the question before us. The proper question for our determination is whether the evidence, construed most favorably for the defendant, supports the implied finding that he was not negligent. It is clear that it does. The testimony of the defendant, corroborated by that of his wife, furnishes ample evidence from which the jury could have concluded that at all times while attempting to enter and cross Race Street he drove carefully, at a very slow speed, keeping a careful lookout and waiting successively for each southbound lane of traffic to stop. Although the 'driver of a vehicle about to enter or cross a highway from any private road or driveway * * * shall yield the right of way to all vehicles approaching on said highway' (former Veh.Code § 533 in effect at the time of the above accident, now Veh.Code § 21804, without substantial change), such a driver, as the defendant was here, 'may lawfully enter a highway so long as there is no vehicle so near as to constitute an immediate hazard.' (Pandell v. Hischier (1959) 166 Cal.App.2d 693, 695, 333 P.2d 762, 763.) The jury could have well believed from the foregoing evidence...