Remy v. Exley Produce Exp., Inc., 17096

• Court: California Court of Appeals
• Writing for the Court: BRAY; PETERS, P. J., and FRED B. WOOD
• Citation: 307 P.2d 65,148 Cal.App.2d 550
• Parties: Allen REMY, Plaintiff, v. EXLEY PRODUCE EXPRESS, Inc., et al., Defendants. EXLEY PRODUCE EXPRESS, Inc., a corporation, Cross-Complainant and Respondent, v. PACIFIC FINANCE CORPORATION, Cross-Defendant and Appellant.
• Docket Number: No. 17096,17096
• Decision Date: 19 February 1957

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307 P.2d 65 148 Cal.App.2d 550 Allen REMY, Plaintiff,
v.
EXLEY PRODUCE EXPRESS, Inc., et al., Defendants.
EXLEY PRODUCE EXPRESS, Inc., a corporation, Cross-Complainant and Respondent,
v.
PACIFIC FINANCE CORPORATION, Cross-Defendant and Appellant. No. 17096. District Court of Appeal, First District, Division 1, California. Feb. 19, 1957.
Hearing Denied April 17, 1957.

[148 Cal.App.2d 551] Partridge, O'Connell & whitney, Robert G. Partridge, Jr., San Francisco, for appellants.

William A. Kurlander, Anthony J. Calabro, Leslie G. MacGowan, San Francisco, for respondent.

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BRAY, Justice.

Defendant and cross-defendant Pacific Finance Corporation appeals from a judgment, after jury verdict, in favor of cross-complainant Exley Produce Express, Inc.

Questions Presented.

1. The main question presented is whether the verdict and judgment are inconsistent with a simultaneous verdict and judgment in favor of plaintiff and against both Pacific Finance and Exley.

2. Has defendant waived his right to claim inconsistency?

3. Should the judgment in favor of plaintiff be reversed?

Record.

The action arises out of a collision between a truck and trailer belonging to plaintiff and a truck and trailer belonging to Exley. Also involved as an alleged contributing factor to the accident are a Dodge and a Crosley automobile belonging to Pacific Finance, and being operated by Smith, a partner of B & B Auto Sales, with the permission of, and under contract with Pacific Finance. Plaintiff sued Exley, Pacific Finance and B & B for damages to his truck. Exley then cross-complained, for damages to its truck, against plaintiff, Pacific Finance and B & B. ¹ Motion by plaintiff for nonsuit on the cross-complaint was granted. No appeal was taken. The verdict and judgment on plaintiff's complaint [148 Cal.App.2d 552] were in favor of plaintiff and against Exley, B & B and Pacific Finance in the sum of $3,872. Motions for new trial thereon were granted as to B & B and Pacific Finance for insufficiency of evidence. No appeal was taken, so that the judgment now stands solely against Exley. The verdict and judgment on the cross-complaint were in favor of Exley and against B & B and Pacific Finance. The motion for new trial of B & B thereon was granted for insufficiency of the evidence. No appeal was taken so that judgment now stands solely against Pacific Finance, which appeals therefrom. ²

Evidence.

As will appear, it is unnecessary to give the evidence in detail. The accident took place after midnight in the snow area on highway 99. Shortly before, Smith was driving northerly the Dodge, and towing the Crosley. At a curve in the road which went through a cut where the snow was banked on both sides of the road, the two cars slipped to the left side, ending up in the snow bank there. The evidence was conflicting as to whether the Dodge had chains and as to the distance the two cars projected into the southbound lane. (The distance between the two snow banks was 20-24 feet. There were two paved lanes.) Smith and a companion, after being unsuccessful in removing the cars from the snow bank, went for help. The evidence is conflicting as to whether there were any lights lighted on the cars. Plaintiff's truck and trailer was proceeding northerly in its right lane. The Exley truck was proceeding southerly in its right lane, when suddenly it crossed the center line, side-swiping plaintiff's equipment about opposite the Dodge and Crosley. The Exley driver died before trial so his version of the accident could not be obtained. The evidence was such that the jury could have reached any one of three conclusions: (1) That the accident was the result of the combined negligence of the operator of the parked cars and the Exley truck. This apparently was the view of the jury, although the trial court in granting as against plaintiff new trials to the owner and the operator of the cars apparently considered that the parked cars did not contribute proximately to the accident. [148 Cal.App.2d 553] (2) That the parked cars were without lights and in such

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position as to force the Exley truck, in order to avoid hitting them, to hit plaintiff's truck; that Exley, thereby put in imminent peril, was not negligent, and that the sole cause of the accident was the negligence of the operator of the two cars. Evidenctly the jury did not so conclude, nor did the trial court in granting new trials. (3) That the sole cause of the accident was the negligence of the Exley truck. Apparently the jury did not so find, although the court did.

1. Inconsistency.

This, then, brings us to the question of whether the verdicts and judgments were inconsistent, one with the other. Plaintiff's verdict and judgment were against both the parked cars and the Exley truck. ³ Thus, there was an implied finding that both were negligent. But the jury rendered a verdict in favor of the Exley truck as against the parked cars, thereby impliedly finding that while the Exley truck, whose damage was due to its collision with plaintiff's truck, was negligent as against plaintiff's truck, it was not negligent as against the parked cars. Put another way, the jury impliedly found that when the Exley truck collided with plaintiff's truck, the cause so far as the injury to plaintiff's truck was concerned was the joint negligence of the parked cars and the Exley truck, and yet that the damage to the Exley truck in that same collision was solely caused by the negligence of the parked cars. ⁴

Exley contends that there can be a difference between the duty of due care which a person owes a third person and the one he owes himself. Thus, says Exley, its driver could have violated the duty of due care owed plaintiff, and yet at the very same instant have been exercising due care as to himself. 'The jury could have concluded that, in choosing his course of escape by attempting to avoid the parked cars, [148 Cal.App.2d 554] the...