Smith v. Sugich Co.

• Decision Date: 29 March 1960
• Citation: 179 Cal.App.2d 299,3 Cal.Rptr. 718
• Court: California Court of Appeals
• Parties: Kenneth N. SMITH, Plaintiff and Appellant, v. SUGICH CO., Inc., a corporation, Kay K. Watanabe, Defendants and Respondents. Civ. 23785.

Page 718

3 Cal.Rptr. 718

179 Cal.App.2d 299

Kenneth N. SMITH, Plaintiff and Appellant, v.SUGICH CO., Inc., a corporation, Kay K. Watanabe, Defendants and Respondents.

Civ. 23785.

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

March 29, 1960.

Whitney & Friedlander, Albert S. Friedlander, Los Angeles, and James E. Cusick, Beverly Hills, for appellant.

Jarrett & Morgan and Albert J. Holzhauer, Los Angeles, for respondents.

VALLEE, Justice.

Appeal by plaintiff from a judgment for defendants entered on a jury verdict in an action for damages for personal injuries.

Plaintiff ran into, or was struck by, a truck driven by defendant Watanabe at the intersection of Western Avenue and Adams Boulevard in Los Angeles before daylight about 5:30 a.m. on October 15, 1956.Watanabe at the time of the accident was acting in the course and scope of his employment by defendantSugich Company, Inc. Western Avenue extends north and south; Adams Boulevard, east and west.Each street is 60 feet wide.There was a north-south marked crosswalk 17 feet wide across Adams paralleling the easterly curb of Western.The intersection was controlled by tri-lite signals and both plaintiff and Watanabe had green lights for their movements.The weather was good.

Plaintiff was proceeding on foot south-bound across Adams from the northeast to the southeast corner of the intersection.Watanabe was making a right-hand turn from a northbound position in the right-hand traffic lane on Western to proceed east on Adams.The truck headlights were operating on normal beam in good condition.

Watanabe testified: his truck was north-bound in the right-hand lane of Western; he waited for the signal to turn and for a pedestrian to finish crossing the street after the signal had turned green; he switched on the turn indicator to signal a right-hand turn while he waited; he did not want to drive in the parking lane next to the curb because 'cars might be parked there'; he looked in the area of the crosswalk; it was free and clear of motorists and pedestrians; he started his right-hand turn; the truck was moving about 5 to 10 miles an hour; when it was halfway into the turn, he saw plaintiff for the first time a split second before the impact about three to four feet from the truck; plaintiff appeared to be 'going faster than just walking'; as soon as he saw plaintiff, he applied his brakes; he was almost stopped at the moment of impact; plaintiff appeared to run into the left side of the truck.

A witness, Margaret Banks, testified: she had crossed Western on foot in front of the truck while it had been waiting for the green signal on Western; the truck's headlights and the right-hand turn indicator lights were on; after crossing Western, she stood on the southeast corner of the intersection; immediately before the accident she was facing north, looking toward Adams; all 'the lights were burning, the street lights, plus the lights from the gasoline station' on the southeast corner; she could see no one in the street; as the truck turned she heard a thump and saw plaintiff fly up and fall backwards into the street.She also testified that before the accident happened she talked to a 'newspaper fellow' at a newspaper stand on the corner.

Police officers arrived at the scene about 5:35 a. m. They found the major portion of plaintiff's body lying within the crosswalk.Plaintiff was dressed in dark green clothing.The officers observed four feet, seven inches, of locked wheel skidmarks which were made by the right wheels of the truck.They estimated the impact occurred within three feet of a point 22 feet, 6 inches, north of the south curb of Adams and 14 feet east of the east curb of Western.This point was within the crosswalk.The truck was stopped not more than three feet of the estimated point of impact.The officers observed that the center portion of the truck windshield had been cleared of dew by the windshield wipers; there was light dew remaining on the sides and corners of the windshield; the lights of the truck were still operating on normal driving beam in good condition; the truck was in good operating condition; the brakes reflected good response; brush marks from the light morning dew had been rubbed off the truck by plaintiff's clothing; these marks were on the rounded portion of the truck's left-front fender near the headlight.

Plaintiff first testified he did not remember looking to the south on Western; he'wasn't paying any attention.'Parts of his deposition were read to him in which he had stated his primary purpose in looking south was to see whether any cars were coming from that direction.He then testified he did look south and saw no headlights within one block to the south of the intersection.He further testified: his eyesight was good and he neither was wearing nor had he need for glasses; he made no effort to see whether there were vehicles approaching the crosswalk before he crossed over the center line on Adams; he was looking 'straight ahead'; he did not allow his vision to go as far as a foot to his right from directly straight ahead; he did not look to see whether there was a car moving from a parked position or in the process of turning; after taking about three steps south of the center line, he remembered nothing until he came to lying in the street; he never saw headlights, never saw the truck, and never heard the sound of a vehicle before the accident.

Plaintiff asserts the verdict is not supported by the evidence.Irrespective of the question whether defendant was negligent, the jury could have found that plaintiff was guilty of contributory negligence which was a proximate cause of the accident.As the learned trial judge stated in denying a motion for a new trial, 'I am absolutely satisfied the jury found that your client had the right of way, that he was in the cross-walk, but he was one of those persons who rely exclusively on that fact and continued to cross the street in the face of obvious danger, and take no precaution for their own safety at all.'

Plaintiff's chief contention is that the court committed prejudicial error in giving and refusing certain instructions.

Plaintiff requested BAJI No. 149-A ¹ which stated that if the jury found that a party to the action conducted himself in violation of a statute, such conduct constituted negligence as a matter of law.Plaintiff did not complete the blank space provided on the standard form to indicate the specific statute to which the instruction was to be applied.

The court refused plaintiff's request and gave in its place on its own motion an instruction, a version of BAJI No. 149² prior to its revision to conform to the opinion in Alarid v. Vanier, 50 Cal.2d 617, 327 P.2d 897, which advised the jury that if they found a violation of a statute, a presumption of negligence arose which could be overcome by evidence of excuse or justification showing that the violation resulted from causes or things beyond the control of the person charged with the violation.

The court gave an instruction ³ based on section 560(a) of the Vehicle Code and later gave an instruction ⁴ based on section 540(a) of the Vehicle Code.⁵Each of these instructions was stated in the words of the statute as it then read.

Plaintiff asserts the court erred in instructing: first, that violation of a statute raises only a presumption of negligence, and secondly, that the presumption could be overcome by evidence showing the violation was excusable or justifiable.He further asserts the test to be applied in determining whether a person disobeying a statute has overcome the presumption was incorrectly stated.He also complains of the sequence in which the instructions were given.

It is proper to refuse an instruction that if the defendant motorist violated Vehicle Code, section 560(a), in not yielding the right of way to a pedestrian in a crosswalk, the defendant was negligent as a matter of law, where it cannot be said as a matter of law that such violation, if it occurred, was the sole effective cause of the plaintiff's injury.Jermane v. Forfar, 108 Cal.App.2d 849, 855, 240 P.2d 351, 30 A.L.R.2d 860.We have reviewed the record and cannot say that, if such a violation occurred, reasonable men could draw but one inference, and that an inference that such violation was the sole effective cause of the injury.

'It is settled that disobedience of a statute for which criminal sanctions are imposed is not negligence as a matter of law under all circumstances, but a presumption of negligence arises on proof of such a violation, and the presumption can be rebutted by evidence of justification or excuse.'Tossman v. Newman, 37 Cal.2d 522, 525, 233 P.2d 1, 2.'In the application of this rule each violation of a statutory requirement must be considered in connection with the surrounding circumstances.Ordinarily, the excuse relied upon by the violator presents a question of fact for the jury's determination.'Satterlee v. Orange Glenn School Dist., 29 Cal.2d 581, 590, 177 P.2d 279, 284;Ornales v. Wigger, 35 Cal.2d 474, 477, 218 P.2d 531.

If there is any evidence of excuse or justification, the jury should be instructed on the issue whether the excuse or justification for violation of a statute appears from evidence of violation plus evidence of excuse or justification, or from all the surrounding circumstances.Fuentes v. Panella, 120 Cal.App.2d 175, 183, 260 P.2d 853.

The jury could have found that plaintiff was running or moving rapidly and that he ran into the side of the truck.It is conceded he was wearing dark clothing.It was dark.In view of these facts, the jury could have concluded from the circumstances that Watanabe's failure to yield the right of way to plaintiff, if they first found he violated that statute, was excused or justified.Cf.Tossman v. Newman, 37 Cal.2d 522, 523-524, 233 P.2d 1.In respect to the violation of the right-of-way statute...