Seaton v. Spence

• Decision Date: 06 May 1963
• Citation: 215 Cal.App.2d 761,30 Cal.Rptr. 510
• Court: California Court of Appeals Court of Appeals
• Parties: Robert M. SEATON, Plaintiff and Appellant, v. Darrell SPENCE, Defendant and Respondent. Civ. 10537.

Page 510

30 Cal.Rptr. 510

215 Cal.App.2d 761

Robert M. SEATON, Plaintiff and Appellant, v. Darrell SPENCE, Defendant and Respondent.

Civ. 10537.

District Court of Appeal, Third District, California.

May 6, 1963.

Bowers & Sinclair, Roseville, for appellant.

McGregor, Bullen, Saldine & Erich, Sacramento, for respondent.

SCHOTTKY, Justice.

Plaintiff commenced an action against defendant to recover damages for injuries resulting from an antomobile accident. Defendant in his answer pleaded contributory negligence on the part of plaintiff. The jury rendered a verdict in favor of defendant and plaintiff has appealed from the judgment entered on the verdict.

Appellant's main contentions involve the sufficiency of the evidence and asserted errors in instructions given and instructions refused. Before discussing these contentions we shall summarize the evidence as shown by the record, bearing in mind the familiar rule that the evidence must be viewed in the light most favorable to respondent and all conflicts in the evidence must be disregarded.

On the morning of June 2, 1960, at about 9:30 o'clock, appellant was driving a flatbed pickup truck containing two compressors toward Sacramento from Auburn along U. S. Highway 40 in the outside, or righthand, lane. The respondent was driving with his family toward Sacramento on U. S. Highway 40 in the outside lane. At a point about 20 miles from Auburn, opposite the truck scales located along the highway in Sacramento County, respondent drove into the rear of appellant's truck. Immediately prior to the accident respondent had been driving about 150 feet behind another car, which he had followed for some time. On approaching the truck scales respondent's son asked respondent, 'What' do they do there?' Respondent removed his vision from the road to glance at the scales. When he returned his vision to the road ahead, he saw appellant's truck 75 to 100 feet in front of him. Respondent did not see the car he had been following anywhere; it had passed appellant without respondent noticing. Just prior to the scales a large semitrailer truck had been following appellant. Appellant saw by his rearview mirror that the truck was turning into the scales. Just after appellant looked forward again he was struck by respondent.

When respondent first noticed appellant's truck 75 to 100 feet away, respondent was traveling 60 to 62 miles per hour. Respondent immediately applied his brakes and laid down 132 feet of heavy four-wheel skid marks prior to the point of impact and 32 feet of skid marks after the impact to the point directly ahead where his car stopped. Appellant heard the screech of the brakes, although he did not see respondent prior to the collision.

Appellant's truck continued almost straight ahead after the impact to a point 20 feet beyond respondent, a point 52 feet beyond the point of impact. On impact appellant knocked his head against the back of the cab of the truck and then was thrown over the steering wheel. There is no evidence that appellant braked his truck.

The highway at the point of the accident contains two lanes going east and two lanes going west. The lanes are separated by a center divider. Each lane is 12 feet in width and there is a 12-foot shoulder along the outside lane.

The testimony concerning the speed of appellant's truck was conflicting. Appellant stated to officers at the scene of the accident that he had been traveling 40 to 45 miles per hour. The officer repeated this statement in his testimony; appellant did not testify at the trial as to his speed. Respondent, on the other hand, testified appellant was traveling only 10 to 20 miles per hour. The only opportunity respondent had to make this determination was the time between sighting appellant 75 to 100 feet away and the impact.

Respondent testified that he did not pull out to pass appellant while stopping because he did not know if the other lane were clear. He was also afraid the car would tip over or the side of the car where his wife was sitting would be hit.

During the trial respondent's counsel stated that respondent admitted he was negligent 'because he did look away.'

Appellant's first contention is that the evidence is insufficient to support the implied finding of the jury that the appellant was guilty of contributory negligence. Appellant attacks respondent's testimony that appellant's truck was traveling 10 to 20 miles per hour. Appellant states that this testimony must be regarded as inadequate as a matter of law because it 'was made during a time of extreme peril to respondent, at a time when possible injury to respondent, respondent's wife and son was paramount in his mind.' While this argument is quite persuasive, we cannot say that the jury was compelled to reject the testimony of respondent as to the speed of appellant's truck.

Respondent testified he was 75 to 100 feet away from appellant's truck, traveling 60 to 62 miles per hour, when he first noticed appellant's truck. It is true that the only opportunity respondent had to judge the speed of appellant's truck was the time between sighting appellant and the collision, a time when respondent was obviously under great excitement. However, under such circumstances respondent is a competent witness to testify to the speed of appellant's truck. The fact that respondent's observation was momentary goes to the weight of the evidence rather than its admissibility. (Schwenger v. Gaither, 87 Cal.App.2d 913, 198 P.2d 108; Jordan v. Great Western Motorways, 213 Cal. 606, 2 P.2d 786.)

Furthermore, there is other evidence which lends some support to respondent's testimony that appellant's truck was traveling only 10 to 20 miles per hour. Appellant was struck without prior warning and was knocked unconscious; yet his truck came to a stop only 52 feet beyond the point of impact. The jury could condlude such a short stop indicated appellant was traveling slowly. Furthermore, respondent's car traveling 60 miles per hour skidded with all four brakes locked for 132 feet before colliding with appellant's truck. The jury could find that this indicated appellant was not going 40 to 45 miles per hour as he claimed.

The implied finding of the jury that appellant's slow driving was contributory negligence is supported by section 22400 of the Vehicle Code which provides in part:

'(a) No person shall drive upon a highway at such a slow speed as to impede or block the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation or because upon a grade or in compliance with law.'

The jury could have concluded that by driving 10 to 20 miles per hour appellant violated that section. Such a violation would raise a presumption of negligence. (Satterlee v. Orange Glenn School Dist., 29 Cal.2d 581, 177 P.2d 279.)

Appellant's next contention is that even if he were negligent in driving only 10 to 20 miles per hour, his negligence was not a contributing or proximate cause of the accident. But as we view the matter that question was one for the jury to determine. It is well to point out that U. S. Highway 40 at the place of the accdient here involved at the place of the accident here involved knowledge that the flow of traffic is somewhat faster on freeways. The concept of minimum speed laws, comparatively recent in our legislation, was undoubtedly prompted by a recognition that slow moving vehicles on freeways constitute a hazard to the flow of traffic.

Appellant's slow driving certainly contributed to the accident. If appellant had been traveling at a normal rate of speed, respondent might have been able to slow down in time to avoid an accident. Appellant's slow speed also prevented respondent from turning to either side of appellant's car.

"'Proximate cause,' or 'legal cause,' is the name given to the limitation which the courts have been compelled to place, as a practical necessity, upon the actor's responsibility for the consequences of his conduct. The limitation is nearly always a matter of various considerations of policy which have nothing to do with the fact of causation.' (Prosser on Torts, 2d ed., p. 252, sec. 47.) * * *' (...