Rozzen v. Blumenfeld

• Citation: 255 P.2d 850,117 Cal.App.2d 285
• Court: California Court of Appeals Court of Appeals
• Decision Date: 13 April 1953
• Parties: ROZZEN et al. v. BLUMENFELD et al. Civ. 19183.

Page 850

255 P.2d 850

117 Cal.App.2d 285

ROZZEN et al. v. BLUMENFELD et al.

Civ. 19183.

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

April 13, 1953.

Rehearing Denied May 4, 1953.

Hearing Denied June 11, 1953.

Melvin Simon, Samuel Schekman, Los Angeles, Jacob Chaitkin, Pasadena, for appellants.

Parker, Stanbury, Reese & McGee, Los Angeles, J. H. Peckham, Los Angeles, of counsel, for respondents William Clarence Blumenfeld and Gussie Stein.

F. Carlton Myers, Richard L. Hall, William K. Young, Los Angeles, for respondents Arden Farms Co. and Loren Peterson.

WHITE, Presiding Justice.

Plaintiffs appeal from a judgment entered upon a verdict for defendants in an action to recover for personal injuries sustained by the minor plaintiff when he was riding his bicycle and collided with an automobile operated by the defendant Blumenfeld. The grounds urged for reversal are two: first, that the court committed prejudicial error in giving an instruction which extended to defendants the benefit of a presumption that they exercised ordinary care; and second, that prejudicial error resulted from the giving of a number of instructions upon the assumption that there was evidence of contributory negligence on the part of the minor plaintiff.

On October 21, 1950, at about 9:50 a. m. of a Saturday morning, the defendant Peterson was making deliveries of milk for defendant Arden Farms Company on South Orange Grove Avenue in the City of Los Angeles. The street is 30 feet in width and lined with single-family residences. Peterson parked his milk truck on the west side of the north-south street, that is, on the wrong side of the street, in order to make a delivery. After making the delivery he drove his truck across the street in a northeasterly direction. Defendant Blumenfeld, driving north on the same street, attempted to pass the milk truck by swerving to the west or left side of the street just as the minor plaintiff, a boy 6 1/2 years of age, drove his bicycle from the sidewalk on the west side of the street down a driveway and into the side of Blumenfeld's vehicle. The child suffered a skull fracture and was unable to remember any of the facts surrounding the accident. Peterson and Blumenfeld each testified concerning their movements preceding and up to the time of the accident.

The trial court, on its own motion, gave the following instruction:

'At the outset of this trial, each party was entitled to the presumptions of law that every person takes ordinary care of his own concerns and that he obeys the law. These presumptions are a form of prima facie evidence and will support findings in accordance therewith, in the absence of evidence to the contrary. When there is other evidence that conflicts with such a presumption, it is the jury's duty to weigh that evidence against the presumption and any evidence that may support the presumption, to determine which, if either, preponderates. Such deliberations, of course, shall be related to, and in accordance with, my instructions on the burden of proof.'

An instruction in almost identical language, but confining the benefit of the presumption to the plaintiff child alone, was proffered by the plaintiffs and refused.

Repeatedly it has been held that the giving of the quoted instruction, or an instruction of similar tenor, is error when thereby the benefit of the presumption of due care is extended to a party who by his testimony or by evidence introduced in his behalf has disclosed his acts and conduct immediately preceding and at the time of the accident. Speck v. Sarver, 20 Cal.2d 585, 587, 588, 128 P.2d 16, and cases cited; Cole v. Ridings, 95 Cal.App.2d 136, 212 P.2d 597; Ford v. Chesley Transportation Co., 101 Cal.App.2d 548, 225 P.2d 997; Wertheim v. Mears, 104 Cal.App.2d 120, 231 P.2d 89. The precise instruction here under attack was considered in the two last-cited cases and in each case the court on appeal concluded that the giving of the instruction constituted prejudicial error.

Where the error in the giving of the instruction is prejudicial and requires reversal depends upon the facts of the particular case. Speck v. Sarver, supra; Cole v. Ridings, supra; Ford v. Chesley Transportation Co., supra. As was said in Ford v. Chesley Transportation Co., supra, 101 Cal.App.2d at page 552, 225 P.2d at page 1000, 'Inasmuch as the question of prejudice depends upon the facts of the particular case it would not be useful to point out the particulars in which the facts of the present case differ from those in which it has been held that the giving of the same instruction, while erroneous, was not prejudicial.' We conclude as did the court in the last-cited case, that the error was prejudicial.

In determining whether prejudice resulted in a particular case, the vice of the criticized instruction should be kept in mind. The party against whom the presumption is invoked must not only overcome by a preponderance of the evidence the case presented by the opposing party, but must also overcome the presumption, for in the language of the instruction, conflicting evidence must be weighed 'against the presumption, and any evidence that supports the presumption, to determine which, if either preponderates.' In circumstances such as are here presented, paraphrasing the language in Speck v. Sarver, supra, 20 Cal.2d at page 588, 128 P.2d 16 (quoting from Rogers v. Interstate Transit Co., 212 Cal. 36, 297 P. 884), whether either of the defendants took ordinary care of his own concerns while operating his vehicle on the particular occasion in question was a matter of evidence established by such defendant and witnesses called by him, and 'in the face of this evidence, there was no room for any presumption.' [20 Cal.2d 585, 128 P.2d 18.] Or, as was said by Division Three of this court in an opinion prepared by Presiding Justice Shinn in Ford v. Chesley Transportation Co., supra, 101 Cal.App.2d at page 553, 225 P.2d at page 1001, 'The effect of the instruction was to add strength to defendant's claim that it was free from negligence. The considerations pointing to negligence would have to overcome not only those pointing to a contrary conclusion, but also the presumption that defendant was not negligent.' This court, in Cole v. Ridings, supra [95 Cal.App.2d 136, 212 P.2d 600], quoted from Clary v. Lindley, 30 Cal.App.2d 571, 573, 86 P.2d 920, as follows:

"A disputable presumption is a substitute for proof of facts. It is a species of evidence that may be accepted and acted upon when there is no other evidence to uphold the contention for which it stands.' Noble v. Key System, Ltd., 10 Cal.App.2d 132, 137, 51 P.2d 887, 889. It may be controverted by evidence. Code Civ.Proc., § 1961. It is dispelled when evidence is produced by the party or his witnesses covering the subject of the presumption. Rogers v. Interstate Transit Co., 212 Cal. 36, 297 P. 884. When there is a conflict in the evidence introduced by opposing parties, there is no room for the presumption (Kelly v. Fretz, 19 Cal.App.2d 356, 65 P.2d 914), for the simple reason that one side or the other would be forced to introduce evidence to controvert other evidence, plus a presumption. (Paulsen v. McDuffie, 4 Cal.2d 111, 47 P.2d 709; Mundy v. Marshall, 8 Cal.2d 294, 65 P.2d 65).'

A second vice of the instruction is that it is bound to produce doubt or confusion in the mind of a conscientious juror, when he considers it in the light of other...