Pemberton v. Ince Bros. Pipeline Const. Co.

• Decision Date: 03 October 1962
• Citation: 25 Cal.Rptr. 38,208 Cal.App.2d 167
• Parties: Patricia F. PEMBERTON and Charles W. Pemberton, Plaintiffs and Appellants, v. INCE BROTHERS PIPELINE CONSTRUCTION COMPANY, a co-partnership; Earl G. ince and Glenn Ince, individually and as co-partners thereof; and Earl M. Pellegrini, doing business as Santa Clara Construction Company, Defendants and Respondents. Civ. 19416.
• Court: California Court of Appeals Court of Appeals

Page 38

25 Cal.Rptr. 38

208 Cal.App.2d 167

Patricia F. PEMBERTON and Charles W. Pemberton, Plaintiffs and Appellants, v. INCE BROTHERS PIPELINE CONSTRUCTION COMPANY, a co-partnership; Earl G. ince and Glenn Ince, individually and as co-partners thereof; and Earl M. Pellegrini, doing business as Santa Clara Construction Company, Defendants and Respondents.

Civ. 19416.

District Court of Appeal, First District, Division 2, California.

Oct. 3, 1962.

Rehearing Denied Oct. 18, 1962.

As Amended Nov. 1, 1962.

Hearing Denied Nov. 28, 1962.

Edward J. Niland, Boccardo, Blum, Lull, Niland & Teerlink, San Jose, for appellants.

Campbell, Custer, Warburton & Britton, San Jose, for respondents Earl G. Ince and Ince Bros. Pipeline Const. Co. George A. Strong, Santa Clara, of counsel.

John P. Whitney, by F. H. Pearson, Jr., San Jose, for respondent Earl M. Pellegrini dba Santa Clara Const. Co.

SHOEMAKER, Justice.

The plaintiffs Pemberton, husband and wife, commenced the action below to recover damages for injuries sustained when an automobile occupied by them and one Stephen San Filippo struck a mound of dirt while proceeding along Payne Avenue in the City of San Jose. They have appealed from an adverse judgment entered on a jury verdict, contending that the court erred in refusing and omitting certain instructions, and in admitting and refusing to admit certain evidence.

The defendant, Ince Brothers Pipeline Construction Company, a subcontractor of the defendant Santa Clara Construction Company, was installing a storm sewer along the north side of the paved portion of Payne Avenue, an asphalt roadway running generally from east to west, two traffic lanes in width. Ince Brothers' trenching operations along the northernmost edge of the roadway entailed the excavation of a large amount of soil. During the day, this soil covered most of Payne Avenue. Both eastbound and westbound vehicular traffic utilized a bypass along the southerly side of the pavement to avoid the obstruction. Excavated soil which was not used to back-fill the trench was moved some 25 feet south of the roadway into a new subdivision in which residential contruction was in progress. At the end of each day, the excavated soil was removed from the southernmost, or eastbound, traffic lane and shaped along the open trench and around a trenching machine which was locacted at the west end of the trench. Conflicting evidence viewed in the light most favorable to the verdict indicates that on the night in question this mound of soil was between four to five feet in height, and twenty-five feet in length.

On the night of January 21, 1958, about an hour before the plaintiffs' accident, one Kenneth Heisler, while driving in the eastbound traffic lane of Payne Avenue in the area described, was confronted with the headlights of an automobile approaching in his lane of traffic. When the oncoming automobile was approximately 100 feet away, Heisler swerved to his left, colliding with the mound of soil near its east end. Heisler testified that he struck the mound while at least partly in the eastbound traffic lane; that his vehicle ultimately came to rest in the bypass area south of the roadway; and that he did not notice the mound of soil along which he was proceeding until after the impact. After the accident, he walked to a nearby home, telephoned his wife and the highway patrol, and was then driven home.

Highway patrol officers arrived at the scene of the Heisler accident at 10 p. m., set out fuse flares, and proceeded with their investigation. Shortly thereafter, witnesses Boehnke and Gage arrived at the scene in a tow-truck. The officers left the scene to interview Heisler, and had proceeded approximately two or two and one-half miles east on Payne Avenue when, at 10:29 p. m., they received a radio call that a second automobile had struck the mound of soil. The plaintiffs were occupants of the automobile involved in this second accident.

The negligence relied on by plaintiffs was that the defendants ¹ had maintained an unilluminated mound of dirt on the roadway, failing to provide motorists with warning of the obstruction. Testimony was elicited from each of the aforementioned persons, as well as from certain of Ince Brothers' employees and the defendant, Earl Ince, as to the size of the mound of soil, the portion of the roadway which it covered, and the extent to which it was illuminated by flare pots and cordoned off by barriers. This testimony was highly conflicting. It is not contended, however, that the state of the evidence on this crucial issue does not warrant a defense verdict. Viewed in accordance with the usual rules of appellate review, the record reveals evidence from which the jury might properly have concluded that the mound of soil and its approaches were sufficiently illuminated and barricaded at the time of both accidents.

The plaintiffs' first contention on appeal stems from the failure of the court to instruct, on its own motion, that evidence of the oral admissions of a party ought to be viewed with caution. The defendant Earl Ince was not present at the trial. His deposition was read to the jury by his counsel. Therein, in response to an inquiry whether he conversed at the scene of the accident with any of the occupants of the San Filippo vehicle, Ince testified to an argument between himself and Pemberton in which the latter stated that he was the driver of the vehicle. Ince also testified, as did highway patrol Officer Kissner, that Mr. Pemberton appeared to have been drinking. Mr. Pemberton testified in rebuttal that he could not recall the conversation. He denied having told Ince that he was the driver of the car. He and San Filippo both testified that San Filippo was the driver of the car, and that none of them had been drinking during the evening.

The trial court, determining that the evidence raised an issue as to the identity of the driver of the vehicle, instructed that the jury might find Mr. Pemberton guilty of contributory negligence if it found that he, and not San Filippo, was the driver.

A trial court is required by section 2061, subdivision 4, of the Code of Civil Procedure, to instruct a jury on all proper occasions that the testimony of an accomplice ought to be viewed with distrust, and the evidence of the oral admissions of a party with caution. However, the record amply discloses that the court's failure to do so did not result in prejudice to the plaintiffs. (Cf. Freeman v. Nickerson (1946) 77 Cal.App.2d 40, 63, 174 P.2d 688; People v. Gardner, supra.) The trial court instructed the jury that the contributory negligence of Mr. Pemberton, if any, would bar only his recovery and not that of his wife, and that any negligence on the part of San Filippo could not be imputed to either of the Pembertons. It informed the jury that, under the evidence, Mrs. Pemberton could not be found negligent, and that if they found the defendants were negligent and their negligence a proximate cause of her injuries, they should return a verdict in her favor. Thus, the issue raised as to the identity of the driver of the vehicle had significance only with respect to the question of Mr. Pemberton's contributory negligence. The jury returned a verdict against both plaintiffs and in favor of the defendants. Since contributory negligence was not in issue with respect to Mrs. Pemberton's cause of action, the verdict necessarily reflects a determination in favor of the defendants on the issue either of negligence or proximate cause. Indeed, the jury was instructed that they were to determine these two issues first, and that if they found in favor of the defendants on either, they were to cease their deliberations at that point. It follows that the issue of Mr. Pemberton's contributory negligence was immaterial to the outcome of the case and that the plaintiffs could not have been prejudiced by the court's failure to give an instruction which had significance only in relation to that issue. (See Witt v. Jackson (1961) 57 A.C. 57, 69, 17 Cal.Rptr. 369, 366 P.2d 641; Chadwick v. Condit (1962) 205 A.C.A. 357, 360, 23 Cal.Rptr. 245.)

Plaintiffs theorize, however, that the contradictory testimony on these issues created for the jury a question as to the credibility of Ince, the Pembertons, and San Filippo, and that a determination of this question against them would necessarily have tended to influence the jury's appraisal of all their testimony. For this reason, it is argued, the court's failure to give the cautionary instruction was prejudicial. The contention is purely hypothetical. The record discloses evidence other than that adduced from these witnesses which would have supported a verdict either way. It fails to disclose that the verdict depended upon the extent to which the jury accorded credence to these witnesses, or that any jury determination of the credence of these witnesses necessarily resulted from this and no other conflict in the evidence. Under these circumstances, the prejudice claimed by plaintiffs is not shown to have existed.

The plaintiffs next contend that the court erred in refusing to give their requested instructions on the doctrine of imminent peril. It is argued that the instruction should have been given to qualify the standard of care by which the jury was to measure the reasonableness of the conduct of Heisler and San Filippo. With respect to the conduct of San Filippo, there was no evidence which would have supported such an instruction. To the contrary, he testified that he did not see the mound of dirt until he was within 20 feet of it while traveling at a speed of approximately 30 miles per hour, and that he had no opportunity to swerve before striking the mound. 'Generally it is error to instruct on imminent peril unless at least two courses of action are available to a party after the danger is perceived.' (Givens v. Southern Pacific Co. (1961) 194 Cal.App.2d 39, 46, 14 Cal.Rptr. 736, 740; see also...