Rosa v. Pacific Gas & Elec. Co.

• Decision Date: 20 June 1955
• Citation: Rosa v. Pacific Gas & Elec. Co., 284 P.2d 844, 133 Cal.App.2d 672 (Cal. App. 1955)
• Court: California Court of Appeals
• Parties: Robert L. ROSA, Plaintiff and Appellant, v. PACIFIC GAS & ELECTRIC CO., Defendant and Respondent. Civ. 16339.

Page 844

284 P.2d 844

133 Cal.App.2d 672

Robert L. ROSA, Plaintiff and Appellant, v.PACIFIC GAS & ELECTRIC CO., Defendant and Respondent.

Civ. 16339.

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

June 20, 1955.

Rehearing Denied July 20, 1955.

Hearing Denied Aug. 17, 1955.

Rettig & Dunn, San Francisco, for appellant.

Robert H. Gerdes, William S. Love, San Francisco, for respondent.

PATTERSON, Justice pro tem.

Plaintiff appeals from a judgment of nonsuit in an action to recover for personal injuries.At the time of the collision which forms the basis of this action the plaintiff was traveling north on Sansome Street in San Francisco.He was operating a three-wheel parcel carrier motorcycle which is 5 or 6 feet in length.As he approached the intersection of Sacramento Street he observed a truck owned by the defendant, Pacific Gas & Electric Company, which was parked on Sacramento Street at right angles to the easterly curb and within the southerly painted crosswalk of Sacramento Street.The truck was 20 feet long and extended approximately to the middle of Sansome Street.Plaintiff slowed down to 5 to 10 miles per hour as he passed the front of the truck and entered the intersection.When he was 5 feet into the intersection he observed a taxicab traveling westerly on Sacramento Street.At that time the cab had not entered the intersection and was approximately 6 feet from the extended easterly curb line of Sansome Street.The cab was traveling from 20 to 25 miles per hour.The plaintiff could have stopped within 2 to 10 feet.However, he concluded it was safe to proceed and that the cab would slow down and let him through.Then he looked away, and when he arrived at a point three-fourths of the way across the intersection, he again looked at the cab which was 10 feet from him and had not slowed down.The plaintiff accelerated his speed and at a point approximately 21 feet from where he first observed the cab the right front bumper of the cab struck the rear of the motorcycle.At the time of the impact the cab was still traveling at least 20 to 25 miles per hour and had traveled 25 feet from the point where the plaintiff first observed it.The plaintiff received personal injuries.The owner of the taxicab, who was joined as a defendant, paid the plaintiff the sum of $1,750 in consideration for a covenant not to sue.The action proceeded against the defendantPacific Gas & Electric Company alone.Plaintiff claims that negligent parking of defendant's truck was a proximate cause of the injuries sustained.At the conclusion of the plaintiff's case the court granted a nonsuit on the grounds that there was no causal connection between the parking of the defendant's truck and the collision.The only evidence offered by the plaintiff as to the cause of the accident was his own testimony.

We are of the opinion that, under the state of the evidence, the defendant's truck, as urged by plaintiff, was negligently parked in violation of section 586 of the California Vehicle Code which prohibits parking in a crosswalk and section 588 which requires parallel parking.Defendant pleaded as an affirmative defense, and here contends, that it was exempted from the parking restrictions by the provision of section 592.1 of the Vehicle Code.This section provides that these restrictions shall not apply to a vehicle owned or operated by a public utility 'when such vehicle is stopped, standing or parked at the site of work involving the construction, operation, removal or repair of such utility or public utility property or facilities upon, in, over, under or adjacent to a street or highway.'To bring a defendant within the provisions of this section it must be shown that the vehicle at the time of the accident was employed in one of the activities enumerated in the section.It is an affirmative defense which must be specially proven.Isaacs v. City & County of San Francisco, 73 Cal.App.2d 621, 624, 625, 167 P.2d 221.The purpose for which the truck was parked is not disclosed by the record.Defendant cannot therefore claim any exemption from the parking restrictions.

This brings us to the question of proximate cause.Ordinarily proximate cause is a question of fact.However, when the facts are undisputed and only one conclusion may be drawn from them, it becomes one of law.Warner v. Santa Catalina Island Co., 44 Cal.2d 310, 282 P.2d 12;Card v. Boms, 210 Cal. 200, 202, 291 P. 190;Traylen v. Citraro, 112 Cal.App. 172, 175, 297 P. 649.The plaintiff observed the truck.He slowed down and entered the intersection at a low speed.When he had passed the defendant's truck and was 5 feet into the intersection he first observed the taxicab which had not as yet entered the intersection.He testified that he could have stopped within 2 to 10 feet.He observed the position and speed of the cab and determined it was safe to proceed.Having entered the intersection first the plaintiff had the right of way, Vehicle Code, § 550(a).He had the right to assume that the taxicab would slow down and yield the right of way as he proceeded through the intersection.The rule is stated in Couchman v. Snelling, 111 Cal.App. 192, 195, 196, 295 P. 845, 847, as follows: 'Where a car has actually entered an intersection before the other approaches it, the driver of the first car has the right to assume that he will be given the right of way and be permitted to pass through the intersection without danger of collision.He has a right to assume that the driver of the other car will obey the law, slow down, and yield the right of way, if slowing down be necessary to prevent a collision.Keyes v. Hawley, 100 Cal.App. 53, 60, 279 P. 674.'Clearly the plaintiff's determination at this point to proceed rather than slow down or stop was not influenced by the position of the defendant's truck.

The final question which presents itself is whether the position of the truck influenced the conduct of the driver of the cab.He was not called as a witness.The plaintiff has cited a number of cases which were decided on conflicting testimony.The factual situations in these cases are distinguishable from the present one, and it would serve no purpose to analyze them.The diagram introduced by plaintiff indicated that buildings which extended to the sidewalk were located on all four corners of the intersection.The cab was approaching an obstructed intersection as defined by Vehicle Code section 511 regardless of the presence of the defendant's truck.That section provides, in effect, that as the cab driver, during the last 100 feet of his approach to the intersection, did not have a clear and unobstructed view for a distance of 100 feet of the street upon which plaintiff was driving, the cab driver was required to reduce his speed to 15 miles per hour.The intersection was obstructed both by the buildings and the truck.The double obstruction required additional caution to that required by section 511.

Under section 670, Vehicle Code, the cab driver, driving as he was required to do under section 511, could have stopped in 20.8 feet.Assuming that the first time the cab driver...