Sweeney v. Pozarelli

• Decision Date: 22 July 1964
• Court: California Court of Appeals Court of Appeals
• Parties: Edmund SWEENEY, Jr., and June Sweeney, Plaintiffs and Appellants, v. Albert POZARELLI and Hugh Neville, Defendants and Respondents. Civ. 27729.

Page 601

39 Cal.Rptr. 601

228 Cal.App.2d 585

Edmund SWEENEY, Jr., and June Sweeney, Plaintiffs and Appellants, v. Albert POZARELLI and Hugh Neville, Defendants and Respondents.

Civ. 27729.

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

July 22, 1964.

Rehearing Denied Aug. 17, 1964.

Hearing Denied Sept. 18, 1964.

Jack Dunaway, Hollywood, for appellants.

Spray, Gould & Bowers and Bernard A. Newell, Jr., Los Angeles, for respondent Albert Pozarelli.

Gilbert, Thompson & Kelly and Jean Wunderlich, Los Angeles, for respondent Hugh Neville.

ASHBURN, Justice.*

Plaintiffs Sweeney, husband and wife, appeal from an adverse judgment following jury trial of their action for damages for personal injuries alleged to have been received through negligence of defendants Albert Pozarelli and Hugh Neville in 'a three-way rear end automobile accident' (quoting Pre-Trial Conference Order).

The accident happened in Los Angeles on the Hollywood Freeway near the main interchange, the three cars being in the middle lane and headed easterly. The other two cars were following that of Sweeney and in immediate sequence. Plaintiffs' Cadillac was first, Pozarelli's Volkswagen next, followed by Neville's Ford. Traffic was heavy and was 'stop and go' or 'slow and go'. The Joint Pre-Trial Statement says that 'plaintiffs' automobile came to a stop behind other stopped traffic and was struck from the rear by a Volkswagon being driven by defendant, ALBERT POZARELLI. Said Volkswagon was either simultaneously, or thereafter, struck from the rear by a 1957 Ford being driven by defendant, HUGH NEVILLE.'

The principal question presented on this appeal is whether there was substantial evidence of contributory negligence on the part of Sweeney and whether it was reversible error for the court to charge the jury upon that subject.

The whole line of cars was traveling at speeds variously estimated by the witnesses as 25 to 35 miles an hour. It appears without conflict that the traffic ahead of Sweeney stopped abruptly; the nearest car ahead of him was between one and two and a half car lengths awar; he had enough space in which to make a quick and abrupt stop (described in his deposition as almost a panic stop), which he did, coming to rest about five to ten feet behind the closest car ahead. He testified that he applied the brakes [thus giving a light signal] and also that he gave a hand signal for a stop. He also said he heard tires screeching loudly, looked in his rear view mirror and saw the Volkswagen coming into the rear end of his car, which was at a full stop when hit; the impact was a severe one; some few seconds (two or three or four) later there was another impact at the rear of his car but he did not see the Ford strike the Volkswagen; he and his wife were thrown forward on each impact and both were injured.

Defendant Pozarelli testified that his maximum speed before the accident was 25 to 30 miles; he saw the Cadillac stop when about the length of an American car away from him; when that vehicle stopped its rear lights flashed but plaintiff gave no hand signal; when the witness saw the flash of those rear lights he put on his own brakes but had no opportunity to give a hand signal; his wife (in the seat beside him) fell forward striking and cracking the windshield; his car stopped about a foot behind the Cadillac and did not then strike it; almost immediately after that he heard the brakes or tires of the Ford squealing, could not do a thing and was hit in the rear by the Ford, his car being pushed into the Cadillac.

Defendant Neville said he saw the Cadillac and the Volkswagen making a few stops in the 'stop and go' traffic prior to reaching the scene of the accident; when it occurred he was two car lengths behind the other cars and saw the impact; the Cadillac was stopped at the time it was hit and that was all he saw; he did not see it slow down or stop; the Volkswagen ran into the back of it but was not going very fast and he, Neville, was then about two car lengths behind it going about fifteen miles an hour; when he saw that impact he stepped on his own brakes and did not hit the Volkswagen but 'I touched him'; that made hardly any noise and did not move the Volkswagen.

What is there in this factual picture to suggest or prove contributory negligence on the part of Mr. Sweeney? His speed--25 to 30 miles--was necessarily governed by that of the vehicles ahead of him and behind him and that was the speed at which they were traveling. Defendant Neville testified that the Volkswagen was not going very fast and 'none of us were.' The suggestion that the jury could have found such speed excessive on that freeway is not convincing nor could that speed (if excessive) have any proximate effect upon the drivers behind him.

'The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon, and the condition of, the roadway.' (Vehicle Code, § 21703.) Plaintiff had a right in the exercise of reasonable care to assume and, unless alerted to the contrary, to rely upon the assumption that the drivers behind him would comply with the statutory mandate. (6 Cal.Jur.2d, § 181, p. 633; Harris v. Johnson, 174 Cal. 55, 58, 161 P. 1155, L.R.A.1917C, 477; Dickinson v. Pacific Greyhound Lines, 55 Cal.App.2d 824, 827, 131 P.2d 401.) Of course the one who so relies upon the conduct of another must be exercising reasonable care himself. Thus arises the question which respondents emphasize, whether plaintiff's failure to give a hand signal while making one with an electrical signal device constitutes negligence. The statute (§ 22110) says: 'The signals required by this chapter shall be given either by means of the hand and arm or by a signal lamp or mechanical signal device, but * * * under any condition when a hand and arm signal would not be visible both to the front and rear of the vehicle or vehicles, then the vehicle or vehicles shall be equipped with, and signals shall be given by, a signal lamp or device.' Plainly the type of signal to be given at noontime of a clear day (such as the one in this case) is optional with the driver who is required to signal, optional except under certain situations narrowly defined in the code section. Moreover section 22109 requires a signal from a stopping motorist only 'when there is opportunity to tive the signal.' ¹

While plaintiff testified that he gave a hand signal, we here assume, as we must in the light of Pozarelli's testimony and the verdict, that plaintiff gave only the lamp signal. Incidentally Pozarelli testified that he himself did not have an opportunity to give a hand signal before stopping behind the Cadillac. While it seems true that in certain exceptional circumstances the failure to give a hand signal in the day time may be negligence notwithstanding the option given the driver by the statute (cf. Winningar v. Bales, 194 Cal.App.2d 273, 276, 14 Cal.Rptr. 908) that failure can become important only when it serves as a proximate cause of the accident. (Zaferis v. Bradley, 28 Cal.App.2d 188, 190-192, 82 P.2d 70; McWane v. Hetherton, 51 Cal.App.2d 508, 511, 125 P.2d 85; Reeves v. Lapinta, 25 Cal.App.2d 680, 682, 78 P.2d 465; Petersen v. Lewis, 2 Cal.2d 569, 572, 42 P.2d 311; Wohlenberg v. Malcewicz, 56 Cal.App.2d 508, 512, 133 P.2d 12; Mahnkey v. Bolger, 98 Cal.App.2d 628, 632, 220 P.2d 824; Shahinian v. McCormick, 59 Cal.2d 554, 561, 30 Cal.Rptr. 521, 381 P.2d 377.) Pozarelli saw plaintiff's light signal and saw him stop, so it cannot be inferred that a hand signal would have given him any additional warning of plaintiff's intention to stop before hitting that car. We must deal in probabilities for mere possibilities are not evidence nor do they afford basis for factual inferences. (Estate of Kuttler, 185 Cal.App.2d 189, 204, 8 Cal.Rptr. 160; Eramdjian v. Interstate Bakery Corp., 153 Cal.App.2d 590, 602, 315 P.2d 19; Reese v. Smith, 9 Cal.2d 324, 328, 70 P.2d 933; Sweeney v. Metropolitan Life Insurance Co., 30 Cal.App.2d Supp. 767, 772, 92 P.2d 1043; Fewel & Dawes, Inc. v. Pratt, 17 Cal.2d 85, 89, 109 P.2d 650.)

Defendant Neville did not see the Cadillac stopping nor pay any attention to its driver before he saw it at a full stop. 'At the time of the accident it was stopped and then that's all I saw.'

We find no basis here for an inference that a hand signal was necessary to the exercise of due care by plaintiff or that failure to give one affected or could affect the conduct of either defendant driver and operate as a proximate cause of the accident.

So far as defendants are concerned, it may properly be observed that '[t]he mere fact that a driver of a vehicle does run down the vehicle ahead of him furnishes some evidence that he either was driving at too high a rate of speed, or that he was following too closely the vehicle ahead of him. (Gornstein v. Priver, 64 Cal.App. 249, 221 P. 396; Rodriguez v. Savage Transportation Co., 77 Cal.App.2d 162, 175 P.2d 37; Linde v. Emmick, 16 Cal.App.2d 676, 61 P.2d 338.)' (Apodaca v. Haworth, 206 Cal.App.2d 209, 215-216, 23 Cal.Rptr. 461, 465.) Indeed an inference of negligence (res ipsa loquitur) arises against such driver, an inference that he is the one responsible for the accident (Ponce v. Black, 224 A.C.A. 195, 198-199, 36 Cal.Rptr. 419; Pacific Greyhound Lines v. Querner, 187 Cal.App.2d 190, 192-193, 9 Cal.Rptr. 370; Persike v. Gray, 215 Cal.App.2d 816, 820, 30 Cal.Rptr. 603), which inference must prevail unless or until defendant produces evidence to offset it; defendant has 'the burden of presenting sufficient evidence to dispel or equally balance the inference of negligence raised by law.' (Kohl v. Disneyland, Inc., 201 Cal.App.2d 780, 783, 20 Cal.Rptr. 367, 369.) See also: Dierman v. Providence Hospital, 31 Cal.2d 290, 295, 188 P.2d 12; Burr v. Sherwin Williams Co., 42 Cal.2d 682, 691, 268 P.2d 1041; ...