People v. Campbell, Cr. 6093

• Decision Date: 10 October 1958
• Docket Number: Cr. 6093
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Gordon Travis CAMPBELL, Defendant and Appellant. . Aug, 14, 1958. Hearing Denied

Page 82

329 P.2d 82

162 Cal.App.2d 776

The PEOPLE of the State of California, Plaintiff and Respondent, v. Gordon Travis CAMPBELL, Defendant and Appellant.

Cr. 6093.

District Court of Appeal, Second District, Division 3, California.

Aug, 14, 1958.

Hearing Denied Oct. 10, 1958.

Harold J. Ackerman, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., Norman H. Sokolow, Deputy Atty. Gen., for respondent.

SHINN, Presiding Justice.

In a jury trial, Gordon Travis Campbell was convicted of violating Vehicle Code, section 501 (Count I) and Vehicle Code, section 480 (Count II). He appeals from an order granting him probation and the denial of his motion for new trial.

At 12:45 a. m. on February 7, 1957, Mario Salcedo was driving his Plymouth automobile south on San Vicente Boulevard in Beverly Hills. The posted speed for automobiles traveling south on San Vicente at that point was 25 miles per hour. Salcedo stopped for a red light at the intersection of San Vicente and Wilshire Boulevard. While he was waiting for the signal to change, a Lincoln automobile, also going south on San Vicente, struck the rear end of the Plymouth, damaging both vehicles and causing severe injuries to Salcedo, who sustained a fractured skull. The Lincoln was registered to 'Gordon T. or Elizabeth Campbell.' Salcedo was taken to the hospital where he remained for 10 days. At the time of trial, he was still under a doctor's care.

One Proche, who was waiting for the signal in the lane to the right of Salcedo, testified that defendant got out of the Lincoln immediately after the collision, approached to within a few feet of Salcedo, who was lying on the front seat of the Plymouth, and then started to walk west on Wilshire Boulevard without giving his name or exhibiting his driver's license. Porche's passenger, a Mrs. Le Sassier, testified that defendant asked her what had happened and that she replied: 'Can't you see what happened? Didn't you just hit this man?'; without saying anything further, defendant walked away.

William Fairlee, a police officer, testified that he drove Porche up Wilshire Boulevard in a police car to look for defendant. They found Campbell standing on the northwest corner of Wilshire and La Cienega, which was three blocks away. Fairlee asked defendant for some identification and defendant replied that he did not have to give any identification since he had not done anything. Upon being asked by the officer why he had left the scene of the accident, Campbell answered that he didn't know anything about any accident. When asked to accompany the officer, defendant refused to go. Fairlee forcibly placed Campbell in the car and returned to the scene where they met another officer, Marvin Sullivan.

Upon being questioned further by the officers at the scene, Campbell admitted having had two drinks of scotch at the Red Snapper Restaurant. He told the officers that he was in the Lincoln when the collision occurred, but he was not driving. The driver was a man he had met at the Red Snapper; he did not know the man's name. When the officers asked him whether he had been injured, defendant replied that he had not been hurt; he had no visible injuries. Officer Fairlee stated that defendant's breath smelled of alcohol, his eyes were watery and his face had a bloated appearance. The officers gave him a sobriety test. In their opinion, Campbell was under the influence of intoxicating liquor.

Sullivan testified that he observed 44 feet of skid marks on the street; the marks terminated at the point of impact. In his opinion, the Lincoln had been traveling in excess of 40 miles per hour at the time of the collision; he based his opinion upon the skid marks, the damage to both vehicles and the distance Salcedo's car had been pushed forward by the collision.

Defendant, testifying in his own behalf, denied having been intoxicated. He spent the earlier part of the evening of February 6 with a Miss McNally and a Mrs. Auchincloss. Around 8 p. m. he went to the Red Snapper Restaurant on La Cienega, where he had dinner with the proprietor, a Mr. Herd, who was a friend. He ordered one drink of scotch at the bar and took it to the dinner table. Defendant sat talking with Herd until 11 or 11:15 when Herd left. Campbell remained for another 45 minutes. He had nothing further to drink before leaving the restaurant. Mr. Herd and Daniel De Blasio, a bartender employed at the Red Snapper, testified that Campbell had only the one drink at the restaurant.

Defendant testified further that after leaving the Red Snapper he drove 'very normally, down San Vicente towards Wilshire.' Just north of the intersection, Salcedo's car veered suddenly into his lane of traffic from the parking lane to his right. Campbell applied his brakes but they did not hold; he applied the emergency brake, but was unable to stop. He swerved to the right but was unable to avoid striking Salcedo's car. Campbell stated that his chin hit the steering wheel and he could not recall any of the events that happened subsequently or any of the statements that were made by the other witnesses or that were attributed to him. His first recollection was of being in jail, feeling cold, and asking for some blankets. Two of his teeth were broken off and he received a bruise on the right side of his jaw that was visibly red for several days afterward.

On cross-examination, defendant admitted that he probably walked up Wilshire from 'instinct' to get help at a service station located on the northwest corner of La Cienega and Wilshire where he often bought gasoline. He had not been aware that there was an all night restaurant located on the south side of Wilshire at its intersection with San Vicente and an all night service station on the northeast corner of Wilshire and La Cienega.

William Welsh, a private investigator called by the defense, testified that he examined the area nine days after the collision and did not see any skidmarks. Miss McNally and Mrs. Auchincloss appeared for the defense and corroborated Campbell's statement that he had not had any drinks while in their company.

Dr. R. W. Hayward, a dentist called by defendant, stated that he examined Campbell's teeth on March 26 and found that two teeth on the right side which held his denture had been broken off. In his opinion, it would have taken considerable force to break off the teeth.

Ernest Bence, a witness for defendant, testified that he operated a service station in Brentwood. Two days before the collision, defendant drove into the station in the Lincoln using the emergency brake. Bence testified that he put in some brake fluid and told Campbell to have the master cylinder fixed 'as soon as possible.' Some time after the accident, defendant took his car to a repair shop operated by one Safady. A week or ten days after the car was brought in Safady tested it and found that the brakes did not hold. He took the car to a brake specialist, who opened the master cylinder and told him that the cylinder was leaking. In Safady's opinion, the leak was due to wear and tear; he had not examined the brakes and his opinion was based upon his previous experience in the repair business.

In urging a reversal of the judgment and order, defendant argues numerous assignments of error. It is not contended that the evidence was insufficient to support the verdicts.

With respect to Count I of the information which charged Campbell with felony drunk driving, defendant requested and the court refused to give an instruction on the doctrine of imminent peril and an instruction on misdemeanor drunk driving.

The first mentioned instruction was a proper statement of the rule that one who, without negligence on his part, is suddenly confronted with unexpected and imminent danger, is expected to exercise only the care that an ordinarily prudent person would exercise if confronted with the same unexpected danger under the same circumstances.

The evidence which defendant contends rendered the instruction applicable was the following: It appears that the southbound section of San Vicente at the location in question is a one-way street with four lanes. Campbell testified that he was traveling in lane four, he saw a car in lane three and 'Well, I thought the car veered slightly to the left. I thought he was in the third lane. He changed from the third--I say he--as we approached here, he seemed to go from Lane 3 to Lane 4,' and he testified, as previously stated, that when his brakes failed he swerved to the right.

In order to establish a violation of Vehicle Code Section 501, it must be shown that the accused drove a vehicle on a public highway while under the influence of intoxicating liquor, that, in so driving, he committed an act forbidden by law or neglected a duty imposed by law, and that said act or neglect was a proximate cause of bodily injury to some person.

The possible violations of law that were to be considered were driving at a speed in excess of 25 miles per hour which, prima facie, would have been in violation of Section 510 of the Vehicle Code, driving with defective brakes in violation of Section 670 of the Vehicle Code, or driving without the use of ordinary care or skill, in violation of the duty imposed by Section 1714 of the Civil Code.

Section 670 of the Vehicle Code requires that automobiles when driven upon a highway must be equipped with brakes 'adequate to control the movement of and to stop and hold such vehicle, * * *.' Defendant knew his brakes were defective. Two days before the accident he was informed that the fluid had leaked out of the braking system and that he had no brakes except the emergency brake. He was told to have the condition repaired as soon as possible. He paid no attention to that admonition. He did not know, and he made no effort to find out, whether the brakes would continue to operate for hours or days or weeks. So far as he knew the leak might have been such as would have depleted a...