Silva v. Pacific Greyhound Lines

• Decision Date: 22 July 1953
• Citation: 259 P.2d 743,119 Cal.App.2d 284
• Court: California Court of Appeals Court of Appeals
• Parties: SILVA et al. v. PACIFIC GREYHOUND LINES et al. Civ. 19470.

Page 743

259 P.2d 743

119 Cal.App.2d 284

SILVA et al. v. PACIFIC GREYHOUND LINES et al.

Civ. 19470.

District Court of Appeal, Second District, Division 2, California.

July 22, 1953.

Rehearing Denied Aug. 4, 1953.

Hearing Denied Sept. 17, 1953.

Margolis, McTernan & Branton, by Mitchell Levy, Los Angeles, for appellants.

Bauder, Gilbert, Thompson & Kelly, Los Angeles, for respondents.

MOORE, Presiding Justice.

Plaintiffs, husband and wife, sued defendant bus company and defendant driver for personal injuries received while passengers on defendant's bus. The jury found for the defendants. From the judgment and an order denying their motion for a new trial, plaintiffs appeal. The order is not appealable. Code Civ.Proc. § 963.

The Facts

Appellants were passengers on a bus of the corporate respondent, enroute from Bakersfield to Los Angeles. The accident which produced appellants' injuries occurred on a three lane portion of U. S. Highway No. 99 between Castaic and Newhall in Weldon Canyon. In an approximately straight portion of the highway with a slight upgrade, the Greyhound driver attempted to pass another smaller bus also proceeding south. At about the time the Greyhound was abreast the smaller bus, a truck and a coupe came around the curve at the south end of the straightaway proceeding north, with the coupe alongside the truck and in the center lane.

The owner of the coupe, seated beside the driver, testified that the two vehicles occupying the center lane collided head on and that the coupe was thrown against the truck by the impact.

The physical facts, such as tiremarks and debris along the highway, and the testimony of several witnesses, including one of the appellants, indicate that the driver of the coupe, on becoming aware of the impending crash, turned or skidded into the side of the truck and then caromed across the highway into the Greyhound, of which the front end at least was within the southbound lane.

After the imapct, the right wheels of the bus were on the shoulder of the highway and over the berm. ¹ The bus continued along the road as the driver attempted to regain his position by steering the right wheels onto the solid shoulder. But his aim was thwarted by the berm and the momentum of the bus, until finally the shoulder merged with the steeper embankment onto which the conveyance fell. Appellants were injured as a result of either the impact or the rolling of the bus.

While no claim is asserted that the facts do not support the verdict, appellants contend that the court so erred in instructing the jury in two respects that the resulting prejudice requires a new trial to be granted.

Are Two Instructions Contradictory?

The jury were instructed in the words of B.A.J.I. ² 206-B on the doctrine of res ipsa loquitur:

'From the happening of the accident involved in this case, as established by the evidence, there arises an inference that the proximate cause of the occurrence was some negligent conduct on the part of the defendant. * * *'

Also, they were advised in the language of B.A.J.I. 131 Alternate:

'The mere fact that an accident happened, considered alone, does not give rise to a legal inference that it was caused by negligence or that any party to this action was negligent.'

The giving of these two apparently contradictory instructions is assigned as error.

Between the two quoted forms, fourteen other instructions were given covering the issues of negligence and proximate cause, the duty required in an emergency and the reliance on the actions of others. However, immediately preceding the second instruction (B.A.J.I. 131 Alternate) quoted above, the jury were directed as follows:

'You are instructed that if you should find that the operator of another vehicle negligently operated the same, and that such negligence was the sole and proximate cause of the accident in question, then you are instructed that the plaintiffs are not entitled to recover from this defendant, even though such other driver is not a party to this proceeding.'

On considering all the issues of the controversy and all the instructions together, the quoted instructions given could not reasonably be regarded as confusing to the jury or in any degree prejudicial to appellants, since B.A.J.I. 131 Alternate is closely tied into the instruction which relates to the negligence of the operator of another vehicle.

Decisions cited by both appellants and respondent contain instructions similar to those first quoted above, but each of them is distinguishable from the factual situation here. In Brown v. George Peoperdine Foundation, 23 Cal.2d 256, 143 P.2d 929, and England v. Hospital of Good Samaritan, 22 Cal.App.2d 226, 70 P.2d 692, relied on by appellants, the court affirmed the granting of a new trial by the trial judge after judgment for defendant, enumerating four and seven errors, respectively, in instructions given or refused to justify its refusal to reverse the trial judge. Appellants in the case at bar are seeking a new trial after judgment for defendant and a denial of a new trial by the trial judge. Also, in the England case, there was no independent agency, such as the coupe involved herein, to which the instruction on ordinary negligence could pertain.

As to respondent's authorities, in Bazzoli v. Nance's Sanitarium, Inc., 109 Cal.App.2d 232, 240 P.2d 672, and Seedborg v. Lakewood Gardens Civic Ass'n, 105 Cal.App.2d 449, 233 P.2d 943, there was a question of whether or not the doctrine of res ipsa loquitur would apply. Both instructions here in question were given and the trial court explained that their application depended on the answer to the prior question, a situation different from that in the case at bar. Judgment for the plaintiff was affirmed in both cases. In Radisich v. Franco-Italian Baking Co., 68 Cal.App.2d 825, 158 P.2d 435, the court again affirmed a judgment for plaintiff, holding that any confusion or prejudice created by the instructions would have been to the advantage of the defendant. Crooks v. Wright, 107 Cal.App. 304, 290 P. 497, presented a situation wherein the court was concerned with the distinction between a presumption and an inference.

Are the Instructions Confusing?

In view of appellants' contention, we first quote the instructions criticized as prejudicial. One of them proceeded as follows:

'* * * that it is incumbent upon the defendant to rebut the inference [of negligence] by showing that it did, in fact, exercise the utmost care and diligence, or that the accident occurred without being proximately caused by any failure of duty on its part.'

'As applied to a common carrier such as defendant Pacific Greyhound Lines, the word 'negligence' where used in the instructions just given you, means any breach of duty toward the passenger, evidence of which has been received in this trial. That duty is defined elsewhere in my instructions to you.'

'The speed at which a vehicle travels upon a highway, considered as an isolated fact and simply in terms of so many miles an hour, is not proof either of negligence or of the exercise of utmost care. * * *'

'A person who, without negligence on his part, is suddenly and unexpectedly confronted with peril, arising from either the actual presence, or the appearance, of imminent danger to himself or to others, is not expected, nor required to use the same judgment and prudence that is required of him, in the exercise of ordinary care, in calmer and more deliberate moments. His duty is to exercise only the care that an ordinarily prudent person would exercise in the same situation. If at that moment he does what appears to him to be the best thing to do, and...