Pittman v. Boiven

• Decision Date: 06 March 1967
• Citation: 57 Cal.Rptr. 319,249 Cal.App.2d 207
• Parties: Ruby PITTMAN, Plaintiff and Appellant, v. Lawrence BOIVEN et al., Defendants and Respondents. Civ. 8053.
• Court: California Court of Appeals Court of Appeals

Page 319

57 Cal.Rptr. 319

249 Cal.App.2d 207

Ruby PITTMAN, Plaintiff and Appellant, v. Lawrence BOIVEN et al., Defendants and Respondents.

Civ. 8053.

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

March 6, 1967.

Rehearing Denied March 30, 1967.

Hearing Denied May 4, 1967.

[249 Cal.App.2d 211] Dexter D. Penman, Anaheim and Edward L. Lascher, Oxnard, for plaintiff and appellant.

Parker, Stanbury, McGee, Peckham & Garrett by Kenneth R. Garrett, Santa Ana, for defendants and respondents.

OPINION

KERRIGAN, Associate Justice.

While there are two codefendants, Lawrence Boiven and W. J. Boiven, the latter's liability is derivative only and by reason thereof reference will be made only to the primary defendant in considering the appeal.

Shortly before midnight plaintiff finished her shift as a waitress and accompanied by a fellow-worker, Martha, visited the Flamingo night club on Los Angeles Street in Anaheim, California, for the purpose of viewing a dance contest known as the 'twist.' The two ladies remained at the club until 1:00--1:30 a.m., during which time Martha enjoyed some mixed drinks. During the course of the show, the two girls met a male friend of Martha's and it was suggested that the two ladies meet him for late coffee at a restaurant which was also located on Los Angeles Street several miles north of the night club. The two ladies left the club together with Martha driving her model 1955 Ford and plaintiff occupying the right front seat.

The defendant, with a male friend, had been a patron of the night club while the two ladies were in attendance. During a period of 1 1/2 hours, defendant had been 'partaking of alcoholic beverages' while viewing the dance contest. The defendant and his friend left the club in defendant's 1955 Chevrolet station wagon, with defendant driving, at the same approximate time as the two ladies departed. The Ford in which plaintiff was riding proceeded north on Los Angeles Street for a distance of approximately two miles from the club to a point where Los Angeles Street intersects with a Santa Ana Freeway on-ramp. The defendant similarly proceeded north behind the Ford. Weather conditions were clear, the road surface was dry, and there were no obstructions to the defendant's view. Defendant's estimated speed was between 20--28 miles per hour from the time he left the club until the second prior to impact, with the station wagon maintaining a distance of approximately three car-lengths (50 feet) behind the Ford. Both cars were traveling in the left or 'fast' lane next to the double line at the time of impact. As the Ford in which plaintiff was riding approached the junction of the Santa Ana Freeway on-ramp, Martha, without signaling, suddenly stopped, or almost came to a complete stop, preparatory to making a left turn. Defendant was looking straight ahead when he noted the stop lights resulting from the application of the Ford's brakes. He immediately applied his brakes and veered to the right in an unsuccessful attempt to avoid the collision. Plaintiff sustained injuries in the resulting impact and initiated the instant action. Contributory negligence was not an issue by reason of plaintiff's guest status. (See Moore v. Franchetti, 22 Cal.App.2d 75, 78, 70 P.2d 492.) A jury trial ensued and during the course of their deliberations, the jury requested a re-reading of certain instructions and eventually returned a verdict in favor of defendants.

Plaintiff appeals and urges a reversal of the judgment because (1) the evidence is insufficient to sustain the verdict and judgment; (2) the court erred in giving certain instructions; (3) the court erred in refusing to give certain proffered instructions; and (4) the court, in re-reading instructions after the jury retired, failed to instruct the jury fully on the law involving the issue to which the jury's inquiry related, and repeated erroneous instructions.

Plaintiff initially urges that defendant was negligent as a matter of law inasmuch as he struck the rear of the car in which plaintiff was riding after following such vehicle for some time preceding the impact. (See Pacific Greyhound Lines v. Querner, 187 Cal.App.2d 190, 193, 9 Cal.Rptr. 370; Cartmill v. Arden Farms Co., 83 Cal.App.2d 787, 789, 189 P.2d 739.) The Pacific Greyhound Lines v. Querner case involved a factual circumstance where the doctrine of Res ipsa loquitur was held to be applicable. Generally, however, the mere occurrence of a collision between two cars does not of itself present a circumstance for applying the Res ipsa loquitur doctrine, though a collision may occur under circumstances warranting application of the doctrine. (Thomas v. Ford, 246 Cal.App.2d 180, ¹ 54 Cal.Rptr. 508; Busch v. Los Angeles Ry. Co., 178 Cal. 536, 539, 174 P. 665, 2 A.L.R. 1607; Keller v. Cushman, 104 Cal.App. 186, 188--189, 285 P. 399; Curry v. Williams, 109 Cal.App. 649, 652, 293 P. 623; Miller v. Cranston, 41 Cal.App.2d 470, 480, 106 P.2d 963.) Circumstances where application of the Res ipsa loquitur doctrine may be justified include rear-end collision cases where the rear car has collided with a stopped, stationary, or parked vehicle. (Alarid v. Vanier, 50 Cal.2d 617, 625, 327 P.2d 897; Slappey v. Schiller, 116 Cal.App. 274, 276--277, 2 P.2d 577; Merry v. Knudsen Creamery Co., 94 Cal.App.2d 715, 721--722, 211 P.2d 905; Persike v. Gray, 215 Cal.App.2d 816, 820, 30 Cal.Rptr. 603; Beck v. Kessler, 235 Cal.App.2d 331, 337, 45 Cal.Rptr. 237.) Notwithstanding the validity of the foregoing propositions, the record indicates that plaintiff made no request for an instruction in terms of Res ipsa loquitur and that even if such instruction had been formally requested, the doctrine would have been inapplicable inasmuch as there was abundant evidence that plaintiff's driver either abruptly slowed her vehicle or suddenly stopped her car just prior to impact for the purpose of making a left turn without giving any signal as required by law. (Veh.Code, § 22109.)

The driver of a motor vehicle must not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle, the traffic, and the condition of the roadway. (Veh.Code, § 21703; 6 Cal.Jur.2d, Automobiles, § 139, p. 600; 60 C.J.S. Motor Vehicles § 323b, p. 750; 7 Am.Jur.2d Automobiles, etc., § 220, p. 769, Distance from vehicle ahead proceeding in the same direction.) The driver in the rear has a duty to yield to the driver of the forward car if the driver of the forward car indicates properly his intention to turn to the left. (Coyne v. Whiffen, 132 Cal.App. 699, 703, 23 P.2d 530.) The driver of the forward vehicle must determine that the vehicles following him are informed by proper signals of his intention to slow down, stop, or turn. (Petersen v. Devine, 68 Cal.App.2d 387, 156 P.2d 936; Elford v. Hiltabrand, 63 Cal.App.2d 65, 74, 146 P.2d 510; Mazgedian v. Swift & Co., 22 Cal.App.2d 570, 572, 71 P.2d 833.) The duty of a driver who reduces his speed to give a signal applies where the driver's speed is reduced suddenly. (See Smith v. Philip Morris Co., 107 Cal.App.2d 361, 362--363, 237 P.2d 295.) Section 22109 of the Vehicle Code provides:

'No person shall stop or suddenly decrease the speed of a vehicle on a highway without first giving an appropriate signal in the manner provided in this chapter to the driver of any vehicle immediately to the rear when there is opportunity to give the signal.'

It has been recognized that a determination the driver in back was negligent in colliding with the vehicle in front is essentially not a question of law but of fact, and depends upon the conditions surrounding the occurrence of the accident. (Getas v. Hook, 236 Cal.App.2d 705, 715, 46 Cal.Rptr. 249; Larson v. Solbakken, 221 Cal.App.2d 410, 427, 34 Cal.Rptr. 450; Kramer v. Barnes, 212 Cal.App.2d 440, 447--448, 27 Cal.Rptr. 895; Davis v. Ewen, 148 Cal.App.2d 410, 413--414, 306 P.2d 908; see Lowenthal v. Mortimer, 125 Cal.App.2d 636, 638, 270 P.2d 942.) A driver is not necessarily negligent because his vehicle rear-ends another. (Burke v. Bloom, 187 Cal.App.2d 155, 162, 9 Cal.Rptr. 563; Kralyevich v. Magrini, 172 Cal.App.2d 784, 792, 342 P.2d 903; Szarapski v. Joaquin, 139 Cal.App.2d 27, 32, 292 P.2d 959; Elford v. Hiltabrand, supra, 63 Cal.App.2d 65, 74, 146 P.2d 510.)

Factors to be considered in determining which driver is to bear the responsibility for the collision include (1) alertness of the driver in the rear in ascertaining the risk of collision (Edlund v. Los Angeles Ry. Co., 14 Cal.App.2d 673, 674--675, 58 P.2d 928; Coppock v. Pacific Gas & Electric Co., 137 Cal.App. 80, 91, 30 P.2d 549); (2) the celerity with which the forward progress of the vehicle was arrested (Coppock v. Pacific Gas & Electric Co., supra); (3) the braking efficiency (Coppock v. Pacific Gas & Electric Co., supra); (4) the distance between the vehicles (Butcher v. Thornhill, 14 Cal.App.2d 149, 58 P.2d 179; Coppock v. Pacific Gas & Electric Co., supra; Hardin v. Sutherland, 106 Cal.App. 473, 479, 289 P. 900); and (5) the suddenness with which the vehicle ahead comes to a stop (Donahue v. Mazzoli, 27 Cal.App.2d 102, 105, 80 P.2d 743; 6 Cal.Jur.2d, Automobiles, § 210, pp. 721--722).

Obviously, the jury found that the defendant was operating his station wagon at a reasonable rate of speed at a moderate distance behind the Ford in which plaintiff was riding immediately prior to impact, and it is well-established that a reviewing court will not reweigh the evidence. (Overton v. Vita-Food Corp., 94 Cal.App.2d 367, 370, 210 P.2d 757.)

The trial court instructed the jury on the subject of impeachment by evidence of prior inconsistent or contradictory statements and admissions or declarations against interest (BAJI 34, BAJI 27, BAJI 31--A, BAJI 33--D, BAJI 34--A); however, the court failed to inform the jury that such evidence is to be viewed with caution, and plaintiff asserts that the court's failure...