Parmalee v. Bartolomei

• Citation: 234 P.2d 1019,106 Cal.App.2d 68
• Court: California Court of Appeals
• Decision Date: 14 August 1951
• Parties: PARMALEE v. BARTOLOMEI. Civ. 7945.

Page 1019

234 P.2d 1019

106 Cal.App.2d 68

PARMALEE v. BARTOLOMEI.

Civ. 7945.

District Court of Appeal, Third District, California.

Aug. 14, 1951.

Mannon & Brazier, Ukiah, for appellant.

Preston & Falk, Tom Cleland, Ukiah, for respondent.

SCHOTTKY, Justice pro tem.

This is an appeal by defendant from a judgment in favor of plaintiff in an action for damages resulting from the collision of two trucks, and from the order denying defendant's motion for a new trial.

Plaintiff in his complaint alleged that the collision was caused by defendant's negligence in operating his truck and that plaintiff had been damaged in the sum of $1,814.84 for damages done to his truck, and the further sum of $1300.00 for loss of use of the truck. Defendant's answer denied any negligence on his part and also set up the defense of contributory negligence on the part of plaintiff.

Following a trial by the court without a jury the court found that defendant so negligently operated his truck that it collided with plaintiff's truck; that plaintiff was damaged in the sum of $3,376. Upon motion for a new the court, in denying the motion, modified the findings and judgment by reducing the amount awarded for damages to the truck from $2,076 to $1,814.84 (the amount alleged in the complaint), so the amount of the judgment, as finally entered and as appealed from, is the sum of $3,114.84.

Appellant first contends that respondent was guilty of contributory negligence as a matter of law, and assets that the road in question was thirteen feet in width at the point of impact; that respondent was driving down hill and appellant driving up hill, and that under Section 527 of the Vehicle Code respondent was required to yield the right of way the appellant, which appellant claims he did not do. Even if it be assumed that the statute in question was violated by respondent, yet, as stated by our Supreme Court in the very recent case of Tossman v. Newman, 37 Cal.2d 522, 233 P.2d 1, at page 2: 'It is settled that disobedience of a statute for which criminal sanctions are imposed is not negligence as a matter of law under all circumstances, but a presumption of negligence arises on proof of such a violation, and the presumption can be rebutted by evidence of justification or excuse.'

And in Satterlee v. Orange Glenn School Dist., 29 Cal.2d 581, at page 588, 177 P.2d 279, at page 283, the court said:

'And if the evidence establishes that the plaintiff's or defendant's violation of the statute or ordinance proximately caused the injury and no excuse or justification for violation is shown by the evidence, responsibility may be fixed upon the violator without other proof of failure to exercise due care. [Citing cases.]

'However, in an emergency, or under unusual conditions, it is generally held that circumstances may be shown to excuse the violatuion. The rule has been aptly stated in Jolley v. Clemens, 28 Cal.App.2d 55, 67, 82 P.2d 51, 58, where it was said (quoting from 1 Shearman & Redfield on Negligence, § 13): "* * * violation of such a statute or ordinance is presumptive evidence of negligence, which, if not excused by other evidence, including all the surrounding circumstances, should be deemed conclusive * * *" Continuing, the court said: 'But unless and until justification or excuse for such conduct appear * * * the general rule applies and it must be treated as negligence per se.' To the same effect is Gallichotte v. California Mut. [Building & Loan] Ass'n, 4 Cal.App.2d 503, 505, 41 P.2d 349, 350, where it was stated: 'Violation of an ordinance is negligence per se. In Alechoff v. Los Angeles Gas & Electric Corp., 84 Cal.App. 33, 39, 257 P.2d 569, 571, it is said: 'It is an axiomatic truth, that every person while violating an express statute is a wrongdoer, and as such is ex necessitate negligent in the eye of the law.' An act which is performed in violation of an ordinance or statute is presumptively an act of negligence, but the presumption is not conclusive and may be rebutted by showing that the act was justifiable or excusable under the circumstances. Until so rebutted, it is conclusive. Mora v. Favilla, 186 Cal. 199, 202, 199 P. 17; Rath v. Bankston, 101 Cal.App. 274, 281, 281 P. 1081.' However, the fact which will excuse the violation of a statute has been defined by the court as one resulting 'from causes or things beyond the control of the person charged with the violation.' [Citing cases.]'

The record fully supports the factual situation set forth in the opinion of the trial court as follows:

'On the 7th day of June, 1949, the parties hereto were engaged in hauling logs over the old Sherwood Road, leading from Sherwood Valley to California State Highway 101. At the particular time in question plaintiff was coming down the hill with his truck loaded with logs and defendant was going up the hill after a load of logs. A collision between the two trucks ensued, resulting in considerable damage to plaintiff's truck.

'The road was not a paved road nor was it a wide road. The evidence presented shows that it had a rather hard surface with small loose rocks on top of it. When plaintiff saw defendant the former brought his truck to a stop or practically so within 40 feet. Plaintiff says he saw defendant 200 yards away. The testimony of the defendant is that the view of the plaintiff must have been obstructed by a bank so that he could not see that far, in fact not nearly that far. Be that as it may, these men had both been engaged in hauling logs over that road for some time and on that particular day in question each knew that other trucks were on the road and each should have been keeping a sharp lookout for trucks approaching from the other direction if they were to use ordinary care. It seems to me that the plaintiff was using due and proper care, and I can see no negligence on his part.

'I find myself unable to be impressed by the...