Ponce v. Black

• Decision Date: 20 January 1964
• Citation: 224 Cal.App.2d 159,36 Cal.Rptr. 419
• Court: California Court of Appeals Court of Appeals
• Parties: Gloria PONCE and Charles C. Ponce, Plaintiffs and Appellants, v. Shirley BLACK, Defendant and Respondent. Civ. 27605.

Page 419

36 Cal.Rptr. 419

224 Cal.App.2d 159

Gloria PONCE and Charles C. Ponce, Plaintiffs and Appellants, v. Shirley BLACK, Defendant and Respondent.

Civ. 27605.

District Court of Appeal, Second District, Division 4, California.

Jan. 20, 1964.

Heily, Herman & Blase, by Neil D. Heily, Oxnard, for plaintiffs and appellants.

Ives, Kirwin & Dibble, Los Angeles, for defendant and respondent.

JEFFERSON, Justice.

Plaintiffs, husband and wife, brought this action to recover for personal injuries sustained by plaintiff wife and for property damage caused to their automobile when they were struck from the rear by defendant's automobile. Appeal is taken from a judgment in favor of defendant following a non-jury trial, and from an order denying plaintiffs' motion for a new trial. The appeal from the non-appealable order must be dismissed.

Defendant testified that at about 1:00 a. m. on the morning of October 14, 1961, she was driving her 1953 Oldsmobile in an easterly direction on U. S. Highway 101, in the City of Long Beach. Defendant was approximately one block away from the intersection of Highway 101 and Magnolia Avenue when she noticed that the trafficlight at the intersection was red, and that plaintiffs' automobile, also headed in an easterly direction, was stopped at the intersection, apparently waiting for the light to change. At the time she first saw plaintiffs' vehicle, defendant was traveling at between 20 and 30 miles per hour. The speed limit was 35 miles per hour. As she approached the intersection she slowed to a speed 'under 20 miles per hour.' When she was about four or five car lengths away from the intersection the traffic light changed from red to green ¹. She applied the power brakes of her automobile, however, they failed to operate, and she struck the rear of plaintiffs' automobile while it was still at the pedestrian walk zone of the intersection. The force of the collision pushed plaintiffs' car through this zone and out into the intersection. Defendant did not think to pull the emergency brake of her automobile or to blow the horn before the collision. The accident occurred in the right hand lane of the east bound side of the street.

Defendant further testified that she had used her car during the week preceding the accident and had experienced no difficulty with the brakes. On the way from her home, located at some distance from the scene of the accident, 'not just right around the corner,' the brakes worked properly. She was 'apologetic' after the accident, saying she was sorry it happened. Approximately $200 in damages was done to the front of her automobile.

There was no evidence that defendant's automobile had been served or that the brakes were checked at any time prior to the accident.

No evidence of contributory negligence was introduced.

Plaintiffs contend that the evidence was insufficient as a matter of law to overcome either the inference or the presumption that defendant's negligence proximately caused the accident. Defendant apparently concedes that the evidence warranted application, as a matter of law, of the doctrine of res ipsa loquitur.

The rule is clear that if there is undisputed evidence that a plaintiff's stationary vehicle was struck from the rear by the defendant's moving vehicle, res ipsa loquitur applies as a matter of law. (Alarid v. Vanier, 50 Cal.2d 617, 625, 327 P.2d 897; Persike v. Gray, 215 Cal.App.2d 816, 30 Cal.Rptr. 603. ²

In the case at hand, the uncontradicted evidence was that defendant's vehicle struck plaintiffs' automobile, from the rear, almost immediately after the signal light at the intersection where the accident occurred had turned to green, and before plaintiff's vehicle, which had been waiting for the light to change, entered the pedestrian zone on the western side of the intersection. Plaintiffs' vehicle was 'stationary' for all practical purposes, and the doctrine of res ipsa loquitur was therefore applicable, thus raising the inference that defendant was negligent. 'To apply the rule is simply to say that the circumstances of the particular accident justify an inference of negligence.' (Merry v. Knudsen Creamery Co., 94 Cal.App.2d 715, 722, 211 P.2d 905, 909.)

Furthermore, by reason of the operation of sections 26300 and 26453 of the California Vehicle Code, a presumption of negligence also arose. Section 26300 provides: 'Every motor vehicle, other than a motorcycle, shall be equipped with brakes adequate to control the movement of the vehicle and to stop and hold the vehicle.' Section 26453 provides: 'All brakes and component parts thereof shall be maintained in good condition and in good working order.' That such a presumption arises in brake failure cases is well settled. (See Alarid v. Vanier, supra, 50 Cal.2d 617, 327 P.2d 897; Merry v. Knudsen Creamery Co., supra, 94 Cal.App.2d 715, 211 P.2d 905; Vesci v. Ingrim, 190 Cal.App.2d 419, 11 Cal.Rptr. 830.) The presumption of negligence is overcome by evidence of justification or excuse. The correct test used to determine whether the violation of the statute is justified or excused is '* * * whether the person who has violated a statute has sustained the burden of showing that he did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law.' [Emphasis added.] (Alarid v. Vanier, supra, 50 Cal.2d 617, 624, 327 P.2d 897, 900.)

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