Sesler v. Ghumman

• Decision Date: 28 March 1990
• Docket Number: No. G006819,G006819
• Citation: 268 Cal.Rptr. 70,219 Cal.App.3d 218
• Court: California Court of Appeals Court of Appeals
• Parties: Franklin Robert SESLER, Plaintiff and Respondent, v. Inderbir GHUMMAN, et al., Defendants and Appellants.

Page 70

268 Cal.Rptr. 70

219 Cal.App.3d 218

Franklin Robert SESLER, Plaintiff and Respondent, v. Inderbir GHUMMAN, et al., Defendants and Appellants.

No. G006819.

Court of Appeal, Fourth District, Division 3, California.

March 28, 1990.

Review Denied June 20, 1990.

[219 Cal.App.3d 220] Hill, Genson, Even, Crandall & Wade, Irvine, Horvitz & Levy, David M. Axelrad and Mitchell C. Tilner, Encino, for defendants and appellants.

Ingram & Truett, Robert B. Ingram, Harold J. Truett, III, San Rafael, and Richard V. McMillan, for plaintiff and respondent.

OPINION

TAYLOR, Associate Justice, Assigned. ^*

Does the trial judge have a duty to specially instruct the jury, other than in the words of Vehicle Code section 21801 ¹ and BAJI No. 5.21, on the duty of a left turning driver where, as here, some but not all of the oncoming vehicles have yielded the right-of-way? We hold, under the circumstances of this case, he does.

I

This is an action for negligence arising out of a traffic accident that occurred on August 15, 1983, at the intersection of Euclid Avenue and Sixteenth Street in Santa Ana, California. There were no traffic signals or stop signs regulating traffic at the intersection, and the weather was clear. The intersection of Euclid Avenue and Sixteenth Street is a "T" intersection, with Sixteenth Street terminating its west end at Euclid. Euclid Avenue is a major north-south arterial highway. The posted speed limit for traffic northbound on Euclid was 40 miles per hour. In the immediate vicinity of the accident, Euclid consisted of two southbound lanes plus a left turn lane, and three northbound lanes.

Plaintiff and respondent Franklin Robert Sesler had proceeded southbound on Euclid, on his motorcycle, intending to turn left on Sixteenth. Defendant and appellant Inderbir Ghumman ² was northbound in his car on Euclid. Sesler was turning left on his motorcycle when he was struck by Ghumman's oncoming car.

Prior to impact, as Sesler approached the intersection, he proceeded into the left turn pocket, stopped, and waited for traffic on north-bound Euclid to clear. The left turn would require that he cross three lanes of northbound traffic. ³ Northbound traffic came to a stop, leaving a gap in traffic through which Sesler could turn. Approximately five cars stopped in each of northbound lanes 1 and 2. There were no vehicles in northbound lane 3. The drivers in lanes 1 and 2 northbound motioned for Sesler to proceed with his left turn in front of them. According to the undisputed testimony, Sesler looked at lane number 3, and did not, nor could he, see any hazard. ⁴ Sesler commenced his left turn.

At about the same time, Ghumman was traveling northbound on Euclid in lane 1 within the posted 40 miles per hour speed limit. As he approached the intersection of Sixteenth Street, he saw the lines of cars stopped in lanes 1 and 2 ahead of him (south of the intersection). He moved into the number 3 lane which was clear of traffic, and proceeded ahead. Ghumman could not see the southbound left turn lane at Sixteenth Street, nor what, if anything, was in front of the northbound cars stopped in lanes 1 and 2.

When Sesler started his left turn, he accelerated from a stopped position to 5-10 miles per hour during the turn. He could not recall looking to his right for oncoming traffic during the turn. ⁵ He crossed in front of lanes 1 [219 Cal.App.3d 222] and 2 and proceeded into lane 3, into the path of Ghumman's oncoming car, without stopping.

Ghumman saw the motorcycle appear in front of him a split second before impact, and braked, leaving 25 feet of skid marks prior to the collision. Ghumman's car struck Sesler's motorcycle. Sesler was knocked off of his motorcycle, across the hood of Ghumman's car, causing Sesler's head to strike the windshield, resulting in serious injuries to Sesler. ⁶

Sesler goes to great pains in his brief to establish, by interrelation of speeds, time and distance, that he was into the intersection in the process of his turn at the time Ghumman was changing from lane 1 to lane 3 northbound. While this "fact" is far from certain under the evidence, we shall assume it to be true for purposes of this appeal. ⁷

The court instructed the jury on the duty of a left-turning motorist in the words of Vehicle Code section 21801, as it existed at the time of trial: "(a) The driver of a vehicle intending to turn to the left at an intersection ... shall yield the right-of-way to all vehicles which have approached or are approaching from the opposite direction and which are so close as to constitute a hazard at any time during the turning movement and shall continue to yield the right-of-way to such approaching vehicles until such time as the left turn can be made with reasonable safety. [p] (b) A driver having so yielded and having given a signal when and as required by this code may turn left and the drivers of all other vehicles approaching from the opposite direction shall yield the right-of-way."

Vigorously advocating Sesler's contributory negligence throughout the trial, Ghumman proposed a tailored jury instruction, specifically instructing the jury on the duty of a left-turning vehicle when an oncoming vehicle has yielded the right-of-way. Designated Defense Instruction No. 6, it reads: "If an oncoming vehicle in the lane closest to the left-turning vehicle surrenders its right-of-way by indicating to the operator of the left-turning vehicle that it desires him to proceed, such operator may not proceed beyond the first lane of traffic, now effectively blocked by the waiving vehicle, if in fact other vehicles approaching in any of the other oncoming lanes will constitute a hazard to the left-turning vehicle during the turning movement." The court refused this instruction, finding that it was covered by BAJI No. 5.21. The court expressed a similar view in denying Ghumman's motion for a new trial.

II

A party has a right to jury instructions on his or her theory of the case, if they are reasonable and supported by the pleadings and the evidence, or any inference which may properly be drawn from the evidence. (7 Witkin, Cal. Procedure (3d ed. 1985) Trial, § 240, p. 246; Anderson v. Latimer (1985) 166 Cal.App.3d 667, 674, 212 Cal.Rptr. 544.) This right is designed to ensure the jury has "a full and complete understanding of the law applicable to the facts" of the case before it. (Bartosh v. Banning (1967) 251 Cal.App.2d 378, 387, 59 Cal.Rptr. 382; Distefano v. Hall (1963) 218 Cal.App.2d 657, 672, 32 Cal.Rptr. 770.) In deciding whether the trial court erred in refusing a requested instruction, the evidence must be viewed in the light most favorable to the party seeking it. (See Anderson v. Latimer, supra, 166 Cal.App.3d at p. 674, 212 Cal.Rptr. 544; Alvarez v. Felker Mfg. Co. (1964) 230 Cal.App.2d 987, 998, 41 Cal.Rptr. 514.)

Appellant's proposed instruction No. 6, quoted above, was grounded squarely on the case of In re Kirk (1962) 202 Cal.App.2d 288, 20 Cal.Rptr. 787. In that case, Kirk, driving eastbound, intended to turn left across two westbound lanes. At the intersection, a driver in westbound lane 1 (lane closest to the center) stopped and motioned to Kirk to turn left in front of him. A driver in lane 2 westbound was unable to see the left-turning Kirk vehicle, as it was hidden from his view by the vehicle to his left which had stopped. By the time he saw the Kirk vehicle cross into his (No. 2) lane, he was too close to stop, and struck the Kirk vehicle. Thus, Kirk is factually on all fours with the case at bench.

In its analysis of section 21801, subdivision (a), the Kirk court noted that in 1957 the Legislature added the phrase "at any time during the turning movement." (Id., at p. 291, 20 Cal.Rptr. 787.) Thus, continued the court, "we reason that if the oncoming vehicle in the lane closest to the left turning vehicle surrenders its right of way by indicating to the operator of the left turning vehicle that it desires him to proceed, such operator may not proceed beyond that first lane of traffic, now effectively blocked by the waiving vehicle, if in fact other vehicles approaching in any of the other oncoming lanes will constitute a hazard to the left turning vehicle during the turning movement." (Id., at p. 291, 20 Cal.Rptr. 787.)

Applying these considerations, the Kirk court reasoned, "[W]hen Karen was given the 'go ahead signal' by the driver in the first lane she still had the obligation to ascertain before proceeding into the next lane if any vehicle ... Iapproaching from the opposite direction was so close as to constitute a hazard at any time during her turning movement." (Id., at p. 292, 20 Cal.Rptr. 787, emphasis added; see also Dawson v. Williams (1954) 127 Cal.App.2d 38, 43, 273 P.2d 75.)

Sesler seeks to distinguish Kirk factually. He fails to do so. There are always minor factual differences between cases. The minor factual differences here are trivial, and do not affect the principles involved.

Amazingly, in the face of the Kirk opinion, Sesler's counsel argued to the trial court, and now argues to us: "[n]either Vehicle Code section 21801 nor In re: Kirk [sic], supra, requires an individual making a left-turn to stop or pause at each lane of traffic and look to see if that lane is clear before crossing that lane." (Resp. brief, p. 11.) And further that: "The true emphasis of Kirk, supra, and all other left-turn cases, is upon whether, at the time the left turning driver is making the decision to turn, that driver ascertains that there are no oncoming vehicle [sic] which are so close as to constitute a hazard." (Resp. brief, p. 14.)

These arguments are untenable. While a motorist may waive his or her own right-of-way, neither the law nor common sense dictate that the waiver applies to any other motorist. To follow Sesler's argument to its logical conclusion would require any oncoming driver to stop at an intersection for the sole reason that vehicles in lanes to...