Powley v. Appleby

• Decision Date: 05 December 1957
• Citation: 318 P.2d 712,155 Cal.App.2d 727
• Court: California Court of Appeals Court of Appeals
• Parties: Wallace O. POWLEY, Ernestine Powley and Dennis Garrison, a Minor by his Guardian ad Litem, Ernestine Powley, Plaintiffs and Appellants, v. Harold R. APPLEBY, Jr., Harold R. Appleby, Sr., State Farm Mutual Automobile Insurance Company, a Corporation, et al., Defendants, Harold R. Appleby, Jr., and Harold R. Appleby, Sr., Respondents. Civ. 22201.

Page 712

318 P.2d 712

155 Cal.App.2d 727

Wallace O. POWLEY, Ernestine Powley and Dennis Garrison, a Minor by his Guardian ad Litem, Ernestine Powley, Plaintiffs and Appellants, v. Harold R. APPLEBY, Jr., Harold R. Appleby, Sr., State Farm Mutual Automobile Insurance Company, a Corporation, et al., Defendants, Harold R. Appleby, Jr., and Harold R. Appleby, Sr., Respondents.

Civ. 22201.

District Court of Appeal, Second District, Division 1, California.

Dec. 5, 1957.

Rehearing Denied Dec. 31, 1957.

Hearing Denied Jan. 28, 1958.

Carter, Young, Zetterberg & Henrie, Pomona, for appellants.

Spray, Gould & Bowers, Los Angeles, for respondents.

FOURT, Justice.

Plaintiffs brought an action for damages for personal injuries sustained by the minor plaintiff, Dennis Garrison, when he was struck by an automobile while riding his bicycle. Prior to trial, dismissal was granted as to defendant State Farm Mutual Automobile Insurance Company. Plaintiffs have appealed from the judgment on a verdict in favor of defendants, and have attempted to appeal from the order denying their motion for a new trial.

The collision occurred shortly after noon on July 29, 1954, at the intersection of Williams Street and Illinois Street in the City of Pomona, California. This area was residential in character; both Williams Street and Illinois Street were paved public highways, forty feet wide from curb to curb; Williams Street extended in an east-west direction, and deadended, forming a 'T' intersection at Illinois Street, which extended in a northsouth direction; there were no markers, buttons or signs within or adjacent to the intersection; the corner lot immediately west of Illinois Street and north of Williams Street was raised slightly from street level, and contained a hedge approximately four feet high which partially obstructed the view of traffic for drivers approaching the intersection in an easterly direction on Williams Street or in a southerly direction on Illinois Street.

At the time of the accident Dennis Garrison was ten years of age, and Harold R. Appleby, Jr., was seventeen years of age.

There is little evidence concerning the activities of the parties immediately prior to and at the moment of the collision.

Dennis Garrison had a new bicycle. He lived on White Avenue, which was one block west of and parallel to Illinois Street. It was his intention to ride around the block before lunch. Dennis testified that he did not remember riding down Williams Street, or whether he was on the right or left side of Williams Street; he could not remember looking before entering the intersection. He said he did not remember how many miles per hour he was going; whether he was pedaling or had applied the brakes on his bicycle. He could not say where the car was in relation to him. He did not know whether the car was moving, and he did not remember seeing the driver of the car. He did recall that he was barely idling when he saw the grille, the headlights and the hood of a car. He had no memory of telling his mother that the driver was looking in another direction and did not see him, or that the car was coming 'real fast.' He did not remember talking to any policeman after the accident. His first memory after the accident was of having his shirt cut off at the hospital.

Harold Appleby, Jr., had been at his aunt's house on Laurel Avenue, which was one block north of and parallel to Williams Street. He testified that after leaving his aunt's house and driving approximately half a block, he was in high gear when he turned right on to Illinois Street. He accelerated slightly and was traveling in the middle of the southbound lane between twenty and twenty-five miles per hour as he entered the intersection of Illinois and Williams Streets. He did not recall looking to the right or left prior to the collision, although he said he caught a glimpse of Dennis out of the corner of his right eye just an instant before the impact, and he heard Dennis scream. He said he did not see Dennis long enough before the collision to know whether he was seated or standing or pedaling, and that when the impact occurred, it felt as if his brakes were holding; that he did not know whether the windshield of his car was clean, or remember whether he was wearing glasses, although his driver's license bore the notation 'must wear corrective lenses.'

Harold Appleby, Jr., at the trial, initially located the point of impact in Illinois Street, approximately fifteen feet north of the intersection, although he admitted that in his deposition he said the collision took place in the northwest quarter of the intersection and then located the point of impact as approximately ten feet south of an extension of the north curb line of Williams Street and fifteen feet east of an extension of the west curb line of Illinois Street.

The automobile came to rest with its front bumper approximately in line with an extension of the south curb line of Williams Street. The bicycle was underneath the front end of the automobile and Dennis was lying in the street in front of and approximately ten feet south of the automobile, his body having traveled through the air before hitting the pavement.

No other witnesses testified concerning the collision or the events immediately prior thereto, and there is no evidence that there was any disinterested eye witness to the collision.

A police officer, Mr. Root, arrived at the scene shortly after 12:20 o'clock p.m., took pictures, made observations, and stepped off measurements.

As plaintiffs' witness, officer Root testified that there were skid marks which ran approximately north and south, that the skid mark made by the right-hand wheel commenced approximately one foot to the north of the other skid mark, and he stepped it off as approximately twenty-seven feet long. He also stated there was a gouge mark apparently made by the left pedal of the bicycle in the middle of the two skid marks, and from this he determined that the point of impact was apparently fifteen feet to the east of the extension of the west curb line of Illinois Street and ten feet to the south of the extension of the north curb line of Williams Street--adding that it could have been farther north.

As defendants' witness, officer Root testified that after the accident he asked Dennis at the Pomona Valley Community Hospital what he was doing at the time of the accident; and that Dennis, in the presence of the admitting nurse and a woman who identified herself as Dennis' mother, said that 'he was taking one more ride around the block before putting his bicycle up, so he thought he would go real fast.' Officer Root further testified that Dennis stated that usually he stopped at Illinois Street when going east on Williams, but that he thought since the street usually wasn't busy he wouldn't this time, and therefore cut the corner fast, and to quote his expression, 'Boom!' Officer Root also stated that from the length of the skid marks he determined that Appleby's car was traveling at a speed of twenty-four miles; and that the speed limit was twenty-five miles per hour. A motion to strike this latter testimony on the basis that it invaded the province of the jury was denied. On cross-examination, officer Root stated that his view of the northwest corner of the intersection was partially obstructed from a position in a car on Illinois Street one hundred feet north of the intersection.

Ernestine Powley, the mother of Dennis, testified that she did not recall being present in the room at the hospital when officer Root questioned Dennis about how the accident happened.

The sufficiency of the evidence to justify the verdict is not questioned by the appellants. Appellants do contend the trial court committed prejudicial error in refusing plaintiffs' requested instruction that the minor plaintiff was presumed to have been exercising due care in operating his bicycle at the time of the collision; and in giving the instruction that at the outset both parties were entitled to the presumption of due care. Appellants also contend there was error in failing to allow certain expert testimony to be introduced and in failing to allow the jury to view the scene of the collision.

Plaintiffs requested the following instruction (B.A.J.I. 135-A), which the trial court refused: 'The law presumes that (Dennis Garrison) one of the plaintiffs in this action, in his conduct at the time of and immediately preceding the accident here in question, was exercising ordinary care and was obeying the law. These presumptions are a form of prima facie evidence and will support findings in accordance therewith, in the absence of evidence to the contrary. When there is other evidence that conflicts with such a presumption, it is the jury's duty to weigh that evidence against the presumption and any evidence that may support the presumption, to determine which, if either, preponderates. Such deliberations, of course, shall be related to and be in accordance with my instructions on the burden of proof.'

In lieu of the foregoing instruction, on its own moton the trial court instructed the jury as follows (B.A.J.I. 135): 'At the outset of this trial, each party was entitled to the presumptions of law what every person takes ordinary care of his own concerns and that he obeys the law. These presumptions are a form of prima facie evidence and will support findings in accordance therewith, in the absence of evidence to the contrary. When there is other evidence that conflicts with such a presumption, it is the jury's duty to weigh that evidence against the presumption and any evidence that may support the presumption, to determine which, if either, preponderates. Such deliberations, of course, shall be related to, and in accordance with, my instructions on the burden of proof.'

Appellants assert that the plaintiff Dennis Garrison, having suffered in the accident severe head injuries which caused a loss of...