Summers v. Burdick

• Decision Date: 24 April 1961
• Citation: 191 Cal.App.2d 464,13 Cal.Rptr. 68
• Parties: Russell F. SUMMERS, Plaintiff and Appellant, v. Richard E. BURDICK and Naglee Company, Defendants and Respondents. Civ. 18996.
• Court: California Court of Appeals Court of Appeals

Page 68

13 Cal.Rptr. 68

191 Cal.App.2d 464

Russell F. SUMMERS, Plaintiff and Appellant, v. Richard E. BURDICK and Naglee Company, Defendants and Respondents.

Civ. 18996.

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

April 24, 1961.

Hearing Denied June 21, 1961.

Robert L. Mezzetti, San Jose, Robert E. Hayes, Santa, Robert P. Aguilar, San Hayes, Santa Clara, Robert P. Aguilar, San

Robert J. Popelka, George W. Bonney, San Jose, for respondents.

SHOEMAKER, Justice.

Plaintiff sued defendants to recover for injuries to himself and his property caused by an automobile driven by defendant Richard Burdick. From the judgment entered in favor of defendants, after trial by jury, plaintiff appeals.

On November 20, 1956, shortly after 6 p. m., plaintiff and his guide dog got off a bus on the westerly shoulder of Highway 101 near Madrone in Santa Clara County, and prepared to cross the highway to reach plaintiff's business and residence on the east side thereof. The highway at this point is four lanes, two northbound--two southbound, divided by chatterbars. Plaintiff had slight vision in one eye to the extent of being able to read a phone book with a magnifying glass, and was also able to distinguish auto headlights at night for some distance. Plaintiff testified that after alighting from the bus he and his dog waited at the edge of the road while two southbound cars passed. He then observed at a point 1/2 to 3/4 of a mile, light from a car coming north. Since it appeared to be too far distant to constitute a danger, plaintiff commanded his dog to go forward and proceeded across the highway, meanwhile keeping the lights under observation at all tims until he reached the gravel on the easterly shoulder, where he was struck. Plaintiff recalls nothing until he awakened in the hospital.

Defendant testified that he was traveling in the slow lane at the time of the accident, at about 50 miles per hour, that his lights were on low beam because he was constantly meeting oncoming traffic, and that he saw plaintiff for the first time 100 to 125 feet in front of him crossing the chatterbars into the fast lane of traffic, that plaintiff was moving rapidly toward the east side of the highway with his dog behind him. Defendant asserts he first applied his brakes and then attempted to swerve to the right in order to avoid hitting the plaintiff, but this attempt was unsuccessful and the accident occurred in the outside lane.

Appellant, at oral argument, indicated that out of his numerous assignments of error he relied most strongly upon two of them, namely, that the court erroneously instructed the jury as to the standard of care applicable to appellant, and that the court erred in refusing to instruct the jury on the doctrine of last clear chance.

We consider these matters first. Appellant contends that numerous instructions were given regarding negligence and contributory negligence, which were so 'honeycombed' with ordinary care language that the plaintiff's disability was not given proper recognition and improper emphasis was placed upon the standard of ordinary care to his detriment. It must be remembered in connection with this assignment that the court was giving instructions which the jury could apply to either appellant or respondents. The record discloses the court gave the usual instructions respecting negligence and contributory negligence in the usual phrasing that the standard of conduct governing the rights of the parties was that of ordinary care, and particularly directed the jury as follows:

'If, in these instructions, any rule, direction, or idea be stated in varying ways, no emphasis thereon is intended by me and none must be inferred by you. For that reason, you are not to single out any certain sentence or any individual point or instruction and ignore the others; but you are to consider all the instructions as a whole and to regard each in the light of all the others.' BAJI 2.

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'Ordinary care is that care which persons of ordinary prudence exercise in the management of their own affairs in order to avoid injury to themselves or to others.' BAJI 102.

Immediately followed the instructions that:

'You are instructed that a person whose vision is impaired must use that degree of care which a person of ordinary prudence with the same impairment would use in similar circumstances.

'Therefore, in deciding whether or not Plaintiff is guilty of contributory negligence, you should consider what would have been the conduct of an ordinarily prudent person with similar impairment.'

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'The Plaintiff pedestrian had just as much right to the use of the highway or roadway as did the Defendant, subject to the provisions relative to right-of-way as I shall instruct you.'

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'I further instruct you that blindness does not preclude a man crossing a street from recovering damages in a case of this kind, if the blind man, under all the circumstances, exercised due caution.'

We find no merit in this objection, as we see the jury was apprised of the fact that appellant's blindness was to be considered in deciding what constituted ordinary care on his part. We presume that jurors possess common intelligence and that they follow the instructions of the court.

Appellant proposed instructions covering the doctrine of last clear chance, which the court refused and which he assigns as prejudicial error. The requirements of this doctrine have been stated many times. We quote them as set forth in the case of Brandelius v. City and County of San Francisco, 1957, 47 Cal.2d 729, at page 743, 306 P.2d 432, at page 440:

'(1) that the plaintiff was in a position of danger and, by his own negligence, became unable to escape from such position by the use of ordinary care, either because it became physically impossible for him to escape or because he was totally unaware of the danger; (2) that defendant knew that plaintiff was in a position of danger and further knew, or in the exercise of ordinary care should have known, that plaintiff was unable to escape therefrom; and (3) that thereafter defendant had the last clear chance to avoid the accident by the exercise of ordinary care but failed to exercise such last clear chance, and the accident occurred as a proximate result of such fairlure.'

Appellant asserts that he proved all of the requirements to bring him within the doctrine. Respondents argue that under our particular facts, the doctrine is inapplicable. We agree with the respondents.

While the authorities upon which appellant relies, namely, Bence v. Teddy's Taxi, 1931, 112 Cal.App. 636, 297 P. 128; Hensley v. Sellers, 1958, 160 Cal.App.2d 117, 324 P.2d 954; Cole v. Ridings, 1949, 95 Cal.App.2d 136, 212 P.2d 597, and Peterson v. Burkhalter, 1951, 38 Cal.2d 107, 237 P.2d 977, are substantially similar to the instant case in many respects, there is one significant element present in these cases which is absent in the case at bar. This element is an unawareness of danger on the part of the plaintiff that he had placed himself in a position of danger. In the present cause, appellant testified that he saw the lights of respondent driver's car approaching before he started across the road and that his attention was never diverted from them during his entire crossing of the highway. He thus reveals that he was fully aware of the approaching automobile during his entire crossing of the highway. Under these circumstances the case of Doran v. City and County of San Francisco, 1955, 44 Cal.2d 477, 283 P.2d 1, is controlling. There the accident occurred when plaintiffs were struck by an electric bus while crossing the street. The evidence established that plaintiffs saw the bus shortly after leaving the curb, they looked again to their right and saw the bus approaching when they were in the center of the street, but heedlessly continued forward without again glancing in that direction. On appeal defendants contended that the last clear chance doctrine was not applicable because plaintiffs were aware of their dangerous condition and could have saved themselves by the exercise of ordinary care. The court agreed, stating:

'In their effort to answer defendants' contention relating to the first required element, plaintiffs apparently realize that they cannot claim that they were in a position of danger from which it was 'physically impossible' for them to escape until after they had passed the center of the street and had stepped directly into the path of the oncoming bus. They therefore rely mainly upon their claim that they were 'totally unaware' of their danger. This latter claim finds no support in the evidence. Plaintiffs concededly knew of the presence of the bus as they started to cross the street, and also knew that it was moving toward them when they again looked to the right while near the center of the relatively narrow street. With this knowledge, they proceeded to step directly into the path of the oncoming bus; and in the light of this admitted knowledge, it cannot be said that plaintiffs were 'totally unaware' of their danger, * * *' 44 Cal.2d at page 484, 283 P.2d at page 5.

In our opinion, from the evidence of appellant he was fully aware of the approach of the automobile almost up until the actual moment of impact and ordinary care on his part could certainly have prevented the accident. We can find no reason why appellant did not stop at the chatterbars dividing the highway instead of proceeding across it into the...