Rodriquez v. Lompoc Truck Co.

• Decision Date: 12 June 1964
• Docket Number: No. 27524,27524
• Citation: 227 Cal.App.2d 769,39 Cal.Rptr. 117
• Court: California Court of Appeals Court of Appeals
• Parties: Leida RODRIQUEZ, Plaintiff and Appellant, v. LOMPOC TRUCK COMPANY, a California corporation, Robert Alton Nunnelee, et al., Defendants and Respondents. Robert E. FABRIS, by and through his Guardian ad Litem, Melvin M. Belli, Plaintiff and Appellant, v. LOMPOC TRUCK COMPANY, a California corporation, Robert Alton Nunnelee, et al., Defendants and Respondents. Mark R. FABRIS, a minor, Stephen A. Fabris, a minor, Donald J. Fabris, a minor, and Robert E. Fabris, a minor, by and through their Guardian ad Litem, Melvin M. Belli, and Robert E. Fabris, by and through his Guardian ad Litem, Melvin M. Belli, Plaintiffs and Appellants, v. LOMPOC TRUCK COMPANY, a California corporation, Robert Alton Nunnelee, et al., Defendants and Respondents. Civ.

Page 117

39 Cal.Rptr. 117

227 Cal.App.2d 769

Leida RODRIQUEZ, Plaintiff and Appellant, v. LOMPOC TRUCK COMPANY, a California corporation, Robert Alton Nunnelee, et al., Defendants and Respondents.

Robert E. FABRIS, by and through his Guardian ad Litem, Melvin M. Belli, Plaintiff and Appellant, v. LOMPOC TRUCK COMPANY, a California corporation, Robert Alton Nunnelee, et al., Defendants and Respondents.

Mark R. FABRIS, a minor, Stephen A. Fabris, a minor, Donald J. Fabris, a minor, and Robert E. Fabris, a minor, by and through their Guardian ad Litem, Melvin M. Belli, and Robert E. Fabris, by and through his Guardian ad Litem, Melvin M. Belli, Plaintiffs and Appellants, v. LOMPOC TRUCK COMPANY, a California corporation, Robert Alton Nunnelee, et al., Defendants and Respondents.

Civ. No. 27524.

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

June 12, 1964.

Rehearing Denied July 6, 1964.

Hearing Denied Aug. 5, 1964.

Belli, Ashe & Gerry, Los Angeles, for appellants.

Morgan, Holzhauer, Burrows, Wenzel & Lynberg, by Wm. Marshall Morgan, Los Angeles, for respondents.

LILLIE, Justice.

Plaintiffs, two injured and the heirs of one killed in a collision with defendants' truck, appeal from judgment entered on a jury verdict in favor of defendants. The issues relate primarily to certain instructions.

We construe the evidence and all reasonable inferences therefrom most strongly in favor of respondents. (Grainger v. Antoyan, 48 Cal.2d 805, 313 P.2d 848; Juchert v. California Water Service Co., 16 Cal.2d 500, 106 P.2d 886.) Plaintiffs were passengers in a 1951 Cadillac driven by Earl Sievers, not a party herein. None of the plaintiffs testified concerning the collision; they rely entirely upon the testimony of Sievers who was their only eye witness. Having been on a trip together, plaintiffs and Sievers, on October 10, 1960, were returning north on Highway 101 to their homes in San Francisco when they had a blowout of the right-rear tire. They had a flat tire the night before in Los Angeles, but failed to have it repaired; Sievers had no spare. He pulled off to the side of the road, examined the tire and removed the fender skirt. As to what Sievers then said to plaintiffs concerning the flat tire and what they all said and did, is found in Sievers' trial testimony and testimony given by him on two prior occasions--three weeks and three months, respectively, after the accident. Other than admitting he 'said something' to plaintiffs, Sievers at the trial denied he discussed with them whether they should continue with the flat tire; however, on cross examination he admitted that previously he had twice testified otherwise--that he discussed the flat tire with plaintiffs and they all decided to drive to a service station 9 miles ahead. Sievers admitted that on October 31, 1960, three weeks after the accident, he testified: 'My ----- we, I got back, after I looked at the tire and took my fender skirt off and put it in my trunk, I got back to the back of the car and I told my cousin Robert Fabris that I had saw a sign around six miles, and I was wondering if I should just try and drive slowly up to it, and we all decided that we should.' (Emphasis added.) Further, at the trial, asked about his conduct with plaintiffs, Sievers testified 'that nobody said nothing'; he denied he talked to Fabris; finally he said: 'I don't remember'; and then admitted--'I said we had a blowout.' At this point Sievers again admitted that in December, 1960, in answer to the question: 'Then what did you do after you had removed the fender skirt and put it in the car?'; he testified: 'I had sat in the car a few seconds, sir, and I asked them (plaintiffs) 'What shall we do?' Then I remember seeing a sign in back of us saying there was a Chevron station around 9 miles ahead, and I happened to look up and I saw another Chevron sign ahead of us that said there was a Chevron station 9 miles ahead.So we decided just to go along slow so we could get to the gas station to get another tire--get my other tire fixed.' (Emphasis added.) Sievers then started the Cadillac and proceeded ahead with the flat tire. Going north, Highway 101 at that point is a one-way, two-lane highway; he turned the car out of the slow right lane and drove the disabled Cadillac north in the left or fast lane of traffic.

Around 1:15 p. m. defendant Nunnelee was driving a truck with two trailer attachments in the right or slow lane, also going north. As he rounded a curve he first saw, some 300 to 500 feet ahead, the Cadillac traveling in the left or fast lane going what he thought to be about the same speed as his truck. The truck was going from 48 to 50 miles an hour; it was in ninth gear and controlled by a governor which prohibited speed over 50. The Cadillac then reduced its speed and the truck began to overtake the Cadillac, both vehicles remaining in their respective lanes; there was no car between them. He did not notice anything unusual about the manner in which the Cadillac was being driven, or whether it had a flat tire or if its right side was down. At all times he was looking at the road ahead but the next time he particularly noticed the Cadillac he was within 3, 4 or 5 car lengths of it; the Cadillac was going 20 or 25 miles per hour. At this time and for 'a matter of a second, maybe two,' he looked in the rear-view mirror attached to the driver's side of the truck to determine if it was safe to pass the Cadillac; he did this as a precaution to make sure that no car behind him would attempt to go around the truck through the gap between it (in the right lane) and the Cadillac (in the left). When he galanced back to the road 'the Cadillac was just coming across the white line' from the left lane into the right lane directly in front of the truck; he was 'right on it' and at that instant he 'yanked at the wheel and hit at the brake' but before it could take effect the collision had occurred. The left front tire of the truck collided with the right-rear bumper of the Cadillac, and jumped up over it and into the trunk of the Cadillac. Damage to the Cadillac extended from the right rear and the rightrear side forward to the right-front door; the front-right side, the front and left-front side appear to have been undamaged by the impact. (Exs. 12, 14.)

One Wilkinson, northbound behind the truck, witnessed the accident; he saw the Cadillac traveling in the left fast lane, then suddenly cut over into the right lane directly in front of the truck.

Jones, a tire expert, examined the flat tire in the Cadillac trunk (the first flat Sievers had in Los Angeles) and determined it could have been repaired with only minor effort. He also examined the flat tire on the Cadillac at the time of the accident and testified that it contained a double tube; that the blowout was caused by the outer tube rubbing against the road through a small portion of the tire which had worn out exposing a thin layer of ply fibers and the outer tube; that the outer and inner tubes revealed that the Cadillac was driven on the flat tire 10 to 25 miles--based on the fact that the tube, made of natural rubber, a strong material, required at least 10 miles of flat riding before it could become as shreaded as it was; that the tire and rim were not as damaged in proportion to the outer tube because the double tube formed a large mass of rubber providing a cushioning effect inside the tire preventing the tire from being compressed entirely flat when driven; and that any sudden acceleration or deceleration of speed would cause the car to swing in the direction of the flat tire--in this case, to the right because the right-rear tire was flat.

Harper, a physicist, examined the tire marks on the highway and correlated them with various parts of the Cadillac and truck; he found the physical evidence (damage to the vehicles and debris at the scene) to be consistent with the testimony advanced by both sides.

Around 1:00 p. m., Ernest Costa, a laborer in a beanfield near the highway, heard an unusual thumping sound, like that of a car going by with a flat tire at 'a pretty fast rate of speed,' coming from the northbound lane of the highway; he then proceeded to the scene of the accident where he saw the Cadillac with the flat tire.

The main evidence pointing to how the collision occurred--the lane in which plaintiffs traveled, how fast Sievers drove, how far they rode on the flat tire and whether the Cadillac swerved in front of defendants' truck--is in irreconcilable conflict. The only undisputed fact concerning the accident is that defendant Nunnelee was at all times traveling in the slow right lane where the collision occurred. Among the four occupants of the Cadillac only Sievers testified; there were no other eye witnesses who testified except defendant Nunnelee and Wilkinson. Plaintiffs' version of the accident is based on Sievers' testimony that he drove the Cadillac in the slow right lane, partly on the shoulder, in slow gear at a speed of 5 to 8 miles per hour for approximately 7/10ths of a mile; that he first saw defendants' truck in his rear-view mirror when the truck was 400 or 500 yards behind him, just rounding a curve; that a little later he saw the truck several car lengths behind and motioned defendant Nunnelee to pass; and that when he glanced in his mirror a third time he saw defendants' truck, which had not slackened its speed, upon him and the impact occurred from the rear without warning. While Sievers, a Mr. Kutbach and a highway patrolman testified that Nunnelee, after the accident, said he had not seen the Cadillac, Nunnelee denied making such a statement.

After hearing the two versions the jury, as it had a right to do, rejected Sievers' story and accepted as true the testimony of defendant Nunnelee and his witnesses. We will not disturb the factual determination of the jury, for it is not the province of this court to evaluate conflicting evidence. (Berniker v....