Quiring v. Zamboni

• Citation: 307 P.2d 650,148 Cal.App.2d 890
• Court: California Court of Appeals Court of Appeals
• Decision Date: 04 March 1957
• Parties: Cornie QUIRING and Rachel Quiring, his wife, Plaintiffs and Respondents, v. Attillio ZAMBONI and Louise Enttle, Defendants, Attillio Zamboni, Appellant. Civ. 8909.

Page 650

307 P.2d 650

148 Cal.App.2d 890

Cornie QUIRING and Rachel Quiring, his wife, Plaintiffs and Respondents, v. Attillio ZAMBONI and Louise Enttle, Defendants, Attillio Zamboni, Appellant.

Civ. 8909.

District Court of Appeal, Third District, California.

March 4, 1957.

L. C. Smith, Redding, for plaintiffs-respondents.

William J. Connolly and Donald F. Farbstein, San Francisco, and Frank Shuman, Redding, for defendant-appellant.

Glenn D. Newton, Redding, for defendant-respondent Nettle.

VAN DYKE, Presiding Justice.

This is an appeal from a judgment entered upon a jury's verdict which awarded respondents $15,000 as general and special damages sustained by them when Mrs. Quiring was injured in a collision between an automobile driven by appellant Zamboni and an automobile being driven by defendant Mrs. Nettle, with whom Mrs. Quiring was riding as a guest. Appellant does not challenge the sufficiency of the evidence as to actionable negligence or resultant injury and damages, but complains of error by the court in: 1. Allowing depositions to be taken into the jury room; 2. Permitting appellant's co-defendant Mrs. Nettle to move for a directed verdict in her favor after arguments had been concluded; and, 3. Giving erroneous instructions to the jury during the jury's deliberations.

The record discloses the following: Mrs. Nettle was proceeding north on a two-lane main highway beyond Redding when she decided to stop at a roadside restaurant on the west or left side of the highway. Before attempting to cross she pulled off on the right-hand shoulder to let oncoming cars pass, then seeing no vehicles approaching from either direction she proceeded to cross to the restaurant. She indicated her intention to turn left by use of the directional signals with which her automobile was equipped.

It was late in the afternoon on a clear, dry day and there were no physical obstructions to a view of the highway in either direction for approximately 250 feet. She had crossed both lanes of the highway and was entering the restaurant premises when her car was struck broadside by that of appellant who was traveling south. Mrs. Quiring testified when she first saw appellant's car it was 300 feet distant and coming at a terrific rate of speed. It laid down skid marks for 150 feet. Mrs. Nettle did not see appellant's car until a moment before the impact. Appellant testified that he observed Mrs. Nettle's car when it was parked on the shoulder, but thereafter he was watching oncoming traffic and did not see her crossing the highway until her car was directly in his path at a distance of only 40 to 60 feet. He said he applied his brakes and swerved off the highway to the right in an attempt to avoid the collision.

At the close of testimony, counsel for Mrs. Nettle stated that he wished to make a motion for a directed verdict in her favor but did not want to do so until after the argument, as he wanted to be sure the facts would not support a holding of wilful misconduct on her part and for that purpose desired to listen to opponent's argument. The court expressed concern at deferring the motion in that way lest confusion be introduced into the case. Appellant's counsel did not at that time object to this procedure. After the arguments were in, counsel for Mrs. Nettle asked leave to make his motion, and appellant's counsel then did object, claiming that counsel had waived his right to make the motion by reserving it and permitting argument to be addressed to the jury on the subject of Mrs. Nettle's liability and by arguing the matter himself. The objections were overruled and the motion was made and granted, the court stating that it would allow appellant's counsel to re-argue the case if he desired. This offer was accepted but with a reservation of his objection, and counsel did argue further, pointing out to the jury the changed aspects of the case and explaining to them that the issue of his client's liability was in no wise affected by the dismissal from the cause of Mrs. Nettle. It was within the court's discretion to permit the belated motion. Gibson v. Southern Pacific Co., 137 Cal.App.2d 337, 346, 290 P.2d 347. Furthermore, we think that appellant failed to show how he was prejudiced by the procedure followed in view of his re-argument, which appears to us to have cleared up any confusion which might have resulted from the motion having been made and granted after argument.

After retiring for deliberation the jury returned to court with the following written query: 'What constitutes negligence? Can we say that he was negligent but not to the point where he should pay comp.' In response the court reread the original instructions on negligence and then stated: 'If you believe defendant Attillio Zamboni was guilty of negligence, he is liable for any injury proximately caused...