Switzer v. State

• Decision Date: 11 February 1969
• Citation: 75 Cal.Rptr. 371,269 Cal.App.2d 627
• Parties: Janet Rose SWITZER et al., Plaintiffs and Appellants, v. The STATE of California et al., Defendants and Respondents. Civ. 1003.
• Court: California Court of Appeals Court of Appeals

Page 371

75 Cal.Rptr. 371

269 Cal.App.2d 627

Janet Rose SWITZER et al., Plaintiffs and Appellants, v. The STATE of California et al., Defendants and Respondents.

Civ. 1003.

Court of Appeal, Fifth District, California.

Feb. 11, 1969.

Boccardo, Blum, Lull, Niland, Teerlink & Bell and Edward J. Niland and Stanley A. Ibler, Jr., San Jose, for appellants.

Thomas C. Lynch, Atty. Gen., and Robert L. Bergman, Deputy Atty. Gen., Sacramento, for respondent State of California.

CONLEY, Presiding Justice.

This appeal is prosecuted by the widow and five children of Richard Fleming Switzer who was killed when the truck he was driving plunged off highway U.S. 40 Alternate, into the Feather River Canyon between Quincy and Oroville. The jury brought in a judgment for all of the defendants who were then left in the case, and appellants having been denied a new trial by the superior court, appeal to this court, claiming only that the trial judge erroneously refused a proposed instruction of the appellants.

In the vicinity of the site where the truck dropped to its destruction, the road runs generally east and west; it is a two-lane highway, approximately 22 feet wide; at the place where the accident occurred the road curves to the right (north) as one is proceeding from Quincy to Oroville, and has commenced a downgrade. There is a ditch and then a rising embankment on the north side of the road. To the south there is a very slight shoulder and then a drop down into the Feather River.

A very severe snow storm had occurred on the summit that day, and the road was variously described by witnesses as 'wet,' 'slippery,' and 'icy.' At approximately 1 p.m. a car driven by a Dolly Rathburn, proceeding west from Quincy, rounded this particular curve, spun out of control, and skidded into the ditch on the north side of the road. Approximately 10 minutes later the automobile driven by Delilah Vig also skidded into the ditch to the east of the Rathburn vehicle. A few moments later a third vehicle, operated by Robert E. Wood, slid into the ditch behind the Vig vehicle. The three cars were then entirely clear of all traffic. At approximately 2 p.m. Officer Phillip Prince of the California Highway Patrol arrived on the scene in the course of a routine patrol. He summoned a tow truck from Quincy, which arrived at about 2:45 p.m.

The tow truck operator removed the Wood vehicle from the ditch first and then prepared to work with the Rathburn vehicle. At that time, by virtue of the obstruction caused by the tow truck, there were cars stopped in the westbound lane, and in the eastbound lane Officer Prince had halted the traffic. The tow truck was blocking the west bound lane, and a portion of the eastbound lane. Officer Prince was standing in the westbound lane near the center line in the vicinity of the tow truck. Several people were also standing in the roadway near the tow truck in the eastbound lane.

At this point the decedent arrived on the scene, traveling west from Quincy, driving a 10-wheel Kenworth truck with a 3000-gallon water tank on it. His speed was estimated by various witnesses to be from 25 to 40 miles per hour. The truck rounded the curve and came upon the scene, but at no time did it reduce its speed. Officer Prince, on seeing the truck, waved his arms, first signaling the truck to stop and then motioning it to come on through because the road was clear; the truck could get right on through. But the truck then swerved into the other lane, narrowly missing the last car in line, passed between the highway patrol vehicle and the tow truck, and drove over the bank without changing its speed or direction. There was testimony that the decedent made no attempt to apply his brakes. As the tank truck passed him, Officer Prince saw the driver sitting upright in the cab, looking straight ahead with his eyes as wide as saucers.

There is conflicting testimony as to whether or not there was sufficient room for the tank truck to come around the tow truck and get safely back into his lane. Officer Prince and several other witnesses thought that there was ample room for the tanker to go through. Several other witnesses did not believe that the truck could have gotten by all other cars successfully.

After the truck went over the side, Officer Prince immediately got his first aid kit and went down over the bank. The decedent was pinned beneath the cab of the truck, which rolled over before it came to rest. The driver, Richard Switzer, was dead; he apparently died during the crash.

There was sharply conflicting testimony as to the safety measures taken by the highway patrolman, Officer Prince, and the tow truck operator at the scene prior to this fatal accident. Dolly Rathburn testified that before the arrival of the tow truck Officer Prince put out flares intermittently. She testified that the tow truck operator did not place smudge pots east or west of the scene, nor did he put out any sign to the east. However, she did see operating on the highway patrol vehicle both the flashing amber light and the red spotlight.

Thomas Pittman, who was driving immediately behind decedent's truck, testified that he did not see any 'wreck ahead' signs, or smudge pots in the highway as he came into the turn, nor did he see any flares on the road. He testified that he did not see flashing lights on the tow truck, although he was looking at the tow truck and thinks that he would have seen such lights had they been on. His testimony was corroborated by that of his wife, Guyla Pittman.

Albert Christenson had been proceeding in an easterly direction, and he was forced to stop at the scene because there were three cars halted ahead of him in his lane of travel. Prior to the time when he stopped his vehicle, he did not see wreck signs, smudge pots or flares in the road, nor did his passenger, Roy Harrison. However, he did see one flare east of the scene of the accident. He testified that he did not see any flashing lights on the tow truck.

On the other hand, there is strong testimony to the effect that all usual or required safety precautions were taken. Officer Prince testified that upon arriving at the scene of the accident he parked his patrol car in a turn-out area parallel with the highway, activated the flashing amber warning light in the rear window of the patrol car, and turned on and pointed the steady red spotlight back across the bend in the canyon so that westbound traffic could see it. He then put out flares both east and west of the scene by crisscrossing three or four fifteen-minute flares in such fashion that each would light the next flare for a period of about 45 minutes. He rechecked and replaced these flares several times prior to the accident. He testified that each time he replaced the flares he found the previous one still burning.

Leon Wilkins, the tow truck operator, testified that when he arrived at the scene, he turned on his blinking red lights, and at the same time put out his 'wreck ahead' sign east of the scene. He then went west of the accident to a point where he turned around, and at this point placed another sign. He testified that he also put out a smudge pot in front of each sign. When he subsequently left the accident scene, he picked up the signals and smudge pots and found that both smudge pots were still burning.

A witness, Emerson Bargar, testified that the flashing red lights on the tow truck were burning, and the amber and red lights on the highway patrol car were on. He also testified that he saw warning signs and smudge pots both west and east of the accident scene. Claude Doyle testified that the flashing lights on the tow truck were burning, and the warning lights on the patrol car were on. He saw a 'wreck' sign and a flare west of the accident scene and a similar sign and smudge pot east of the accident scene. Robert Wood saw the warning lights on the patrol car burning as well as the red flashing light on the tow truck. Jeanneal Griswold testified that she saw a flashing red light a quarter of a mile before reaching the accident scene but did not remember seeing flares or wreck signs.

The record shows that the decedent, with his two adult partners, had gone to the mountains to drive two gigantic tank trucks owned by them down to the warmer flat lands of California and that the three, including most importantly from the standpoint of this case, the decedent Switzer, were not in the best condition by any means to drive a motor vehicle along the roads of the state; they had gone without sleep for many hours and had been drinking considerable amounts of alcoholic liquor prior to the accident. The decedent and Nicholas Pokovich left Watsonville at 1 p.m. or a little later on November 12, 1960, with the purpose of traveling to Susanville in order to bring down the trucks before bad weather set in. They stopped in Santa Clara to pick up the third owner, Nelson Wilhelm, and next stopped in Vallejo where they each had a beer. They, later, halted at Verdi where each of them may have had another beer. They drove on into Reno, arriving sometime after midnight. They had dinner at Harold's Club, with perhaps an alcoholic beverage at dinner. After dinner the three men gambled for wahile and, subsequently, took a catnap in the pick-up truck, the three of them sitting upright in the cab; but, they did not get much rest.

They left Reno at around 3 or 4 a.m. and arrived in Susanville about 6 a.m., November 13, 1960. They went to the apartment of Nell Blosser, Wilhelm's 'girl friend.' Thereafter, the three men went down town and there purchased a bottle of brandy and some beer. They went to the Pioneer Club and had coffee, or maybe something harder than coffee, the witness being unable to remember. They then went back to the apartment and had one or more cups of coffee with 'shots' of brandy in them, called 'coffee royals.' Thereafter, Pokovich took a short nap and, although he is not sure, he thinks Switzer...