Prichard v. Veterans Cab Co.

• Decision Date: 20 December 1965
• Citation: 408 P.2d 360,47 Cal.Rptr. 904,63 Cal.2d 727
• Court: California Supreme Court
• Parties: , 408 P.2d 360 Michael PRICHARD, a minor, etc., et al., Plaintiffs and Appellants, v. VETERANS CAB COMPANY, Defendant and Respondent; Liberty Mutual Insurance Company, Plaintiff in Intervention and Appellant. S. F. 22114

Page 904

47 Cal.Rptr. 904

63 Cal.2d 727, 408 P.2d 360

Michael PRICHARD, a minor, etc., et al., Plaintiffs and Appellants, v. VETERANS CAB COMPANY, Defendant and Respondent Liberty Mutual Insurance Company, Plaintiff in Intervention and Appellant.

S. F. 22114.

Supreme Court of California

Dec. 20, 1965.

Goldstein, Kopp & Skinner, Kopp & Skinner, Quentin L. Kopp and Alvin H. Goldstein, Jr., San Francisco, for plaintiffs and appellants.

L. F. Haeberle, III, Marvin A. Jacobs and Don Friedman, San Francisco, for intervener and appellant.

David Terreo, San Francisco, for defendant and respondent.

McCOMB, Justice.

This cause was transferred here after decision by the District Court of Appeal, First Appellate District, Division Two. On further examination of the record, we adopt the unpublished opinion of that court prepared by Mr. Presiding Justice Shoemaker, with such omissions and additions as hereinafter appear, as and for the opinion of this court. As modified, it reads:

Plaintiff Michael Prichard, a minor, brought this action through his guardian ad litem to recover damages for personal injuries sustained when a motorcycle operated by him collided with a taxicab driven by Charles Cardwhell, during the course and scope of his employment with defendant, Veterans Cab Company. Plaintiff Dessadean Prichard, the mother of the minor plaintiff, sought to recover medical expenses incurred in the treatment of her son's injuries. The complaint alleged that the collision was proximately caused by Cardwhell's negligence in operating the taxicab.

Liberty Mutual Insurance Company, the compensation carrier for the minor plaintiff's employer, filed a complaint in intervention whereby it sought to recover from defendant disability payments and medical expenses paid to or on behalf of the minor plaintiff.

Defendant answered, denying the material allegations of the complaint and affirmatively alleging contributory negligence on the part of the minor plaintiff.

After a trial by jury, verdict and judgment were for the defendant and against all three plaintiffs. They appeal therefrom.

Since defendant's efforts to locate its driver were unsuccessful, the testimony of the minor plaintiff constituted virtually the only evidence as to the precise manner in which the accident occurred.

Michael Prichard stated that on December 2, 1960, he was hired by the L. D. Caulk Company to make motorcycle deliveries to various locations in San Francisco, and occasionally in Daly City and San Mateo. Michael was then 17 years of age, and was licensed to operate a motorcycle.

The motorcycle used by him was leased by his employer from a shop located on Ellis Street. Michael stated that he would pick up the motorcycle at the shop each morning, and, after completing his deliveries would return it to the shop each evening.

On December 9, 1960, Michael delivered some mail to the Rincon Annex Post Office on Mission Street at 6 or 6:15 p. m. Since this completed his duties for the day, he then headed back toward the motorcycle shop. It was dusk, and Michael had turned on the headlights of his motorcycle. He proceeded west on California Street, crossed Powell Street and continued toward Mason Street. He had traveled the same route before and knew that the California-Mason intersection was a busy one.

California Street slopes upward between Powell and Mason Streets, the grade being 11.39 percent. Michael proceeded up the hill in second gear at a speed of approximately 15 miles per hour, which he subse quently increased to 20 or 25 miles per hour. When he had traveled approximately two thirds of the distance between Powell and Mason, be moved from the middle westbound lane into the lane nearest the center line in order to pass a truck which was double parked. He then returned to the middle westbound lane and continued at a speed of 15 or 20 miles per hour.

As Michael approached the crest of the hill, he observed an eastbound taxicab on the opposite side of the California-Mason intersection. The cab was partially in the crosswalk and partially in the intersection. Although the cab appeared stationary when Michael first saw it, he noticed immediately that if moved forward, crossed the double line dividing the eastbound and westbound lanes on California Street, and came to a stop. Michael assumed that the cab was about to make a left turn into Mason.

He admitted that if he had applied his brakes at this point, he could have stopped in ample time to avoid a collision. He nevertheless continued straight ahead at the same rate of speed. Although he had an unobstructed view of the cab, he 'really didn't pay attention' to it. When he 'happened' to look to the left, he saw that the cab had commenced its turn and was within two or three feet of him. He immediately accelerated his motorcycle and turned to the right, but was unable to avert a collision. Michael stated that the cab could not have been traveling faster than five miles per hour at the moment of impact. He estimated his own speed as 20 miles per hour. As a result of the collision, Michael sustained a fracture of the left leg.

Knud Nielsen, the passenger in the taxicab, testified that he was searching his pockets for change immediately prior to the accident, and did not see the approaching motorcycle. He was able to state only that the cab was in the process of making a left turn at the time of the collision, and had passed through the crosswalk. The force of the impact caused his head to strike the ceiling.

Plaintiffs first contend that the evidence was insufficient to support the verdict for defendant. This contention is wholly without merit.

Assuming that negligence on the part of the taxicab driver was shown, it is nevertheless apparent that the testimony of the minor plaintiff comes close to establishing contributory negligence as a matter of law. According to his own testimony, Michael entered an intersection, which was familiar to him and which he knew to be a busy one, at a speed of 15 or 20 miles per hour.

Although he observed that an oncoming cab was about to make a left turn across his path and although he could admittedly have applied his brakes in ample time to avoid a collision, he chose not to exercise the least modicum of caution, and continued onward at the same rate of speed while paying no further attention to the cab.

In view of this overwhelming evidence of negligence on his part, it cannot be doubted that the verdict for defendant was an infinitely fair and reasonable one.

Plaintiffs next assert that the trial court erred in refusing to give their requested instruction, based upon BAJI 147, to the effect that a child is not held to the same standard of conduct as an adult and is only required to exercise that degree of care which ordinarily is exercised by children of like age, mental capacity and experience. ¹

The court did not err in refusing to give plaintiffs' proposed instruction. An exception to the general rule on a child's standard of care arises where a minor engages in an activity which is normally undertaken only by adults, and for which adult qualifications are required. The age of a minor who operates a motor vehicle will not excuse him from liability for driving it in a negligent manner, and he will be required to meet the standard established primarily for adults. (Neudeck v. Bransten, 233 Cal.App.2d 17, 21(3), 43 Cal.Rptr. 250; Elliot v. Jensen, 187 Cal.App.2d 389, 394(6), 9 Cal.Rptr. 642; see Rest.2d Torts, § 283A, com. c; 97 A.L.R.2d 872; 2 Harper and James, The Law of Torts (1956) § 16.8, p. 927; Fleming, The Law of Torts (1957) p. 131; Prosser, The Law of Torts (3d ed. 1964) § 32, pp. 159-160; cf. Dellwo v. Pearson, 259 Minn. 452 (107 N.W.2d 859, 863, 97 A.L.R.2d 866).)

Contrary rulings in Goodwin v. Bryant, 227 Cal.App.2d 785, 39 Cal.Rptr. 132; Shmatovich v. New Sonoma Creamery, 187 Cal.App.2d...