Thornton v. Luce

• Decision Date: 14 November 1962
• Citation: 209 Cal.App.2d 542,26 Cal.Rptr. 393
• Court: California Court of Appeals Court of Appeals
• Parties: James THORNTON and B. L. Schofield, Plaintiffs and Respondents, v. Martha Jean LUCE and Richard B. Luce, husband and wife, Peter Figol, Edmonton Wholesale Fruit & Produce Co., and Joseph Holowaty, Defendants and Appellants, v. Vic KASSARJIAN and Bob Kassarjian, individually and doing business as Vic's Automotive Shop, Leo Molidor, doing business under the fictitious firm name and style of Valley Transmission, Defendants and Respondents. Imperial Casualty & Indemnity Co., a corporation, Plaintiff in intervention and Respondent. Roy SHAW, Plaintiff and Respondent, v. Martha Jean LUCE and Richard L. Duce, Defendants and Appellants. Civ. 26084, 26085.

Page 393

26 Cal.Rptr. 393

209 Cal.App.2d 542

James THORNTON and B. L. Schofield, Plaintiffs and Respondents, v. Martha Jean LUCE and Richard B. Luce, husband and wife, Peter Figol, Edmonton Wholesale Fruit & Produce Co., and Joseph Holowaty, Defendants and Appellants, v. Vic KASSARJIAN and Bob Kassarjian, individually and doing business as Vic's Automotive Shop, Leo Molidor, doing business under the fictitious firm name and style of Valley Transmission, Defendants and Respondents.

Imperial Casualty & Indemnity Co., a corporation, Plaintiff in intervention and Respondent.

Roy SHAW, Plaintiff and Respondent, v. Martha Jean LUCE and Richard L. Duce, Defendants and Appellants.

Civ. 26084, 26085.

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

Nov. 14, 1962.

Rehearing Denied Dec. 11, 1962.

Hearing Denied Jan. 8, 1963.

Thomas P. Menzies, James O. White, Jr., Los Angeles, for appellants, Martha Jean Luce and Richard B. Luce.

Spray, Gould & Bowers, Los Angeles, for Peter Figol, Edmonton Wholesale Fruit & Produce Co. and Joseph Holowaty.

Manasse & Weissburg, Herbert Manasse, Hollywood, for respondents, James Thornton and B. L. Schofield.

Hunter & Liljestrom, Clark Mangum Hunter, Los Angeles, for Vic Kassarjian and Bob Kassarjian (doing business as Vic's Automotive Shop)

Betts, Ely & Loomis, Ingall W. Bull, Jr., Los Angeles, for Leo Molidor (doing business under fictitious firm name and style of Valley Transmission).

Fahrney & Tipton, Long Beach, for Roy Shaw.

No appearance for Imperial Cas. & Indem. Co.

HERNDON, Justice.

Although there are numerous parties and somewhat complex factual situations presented herein for our review, the legal issues are few and relatively clear. Two actions stemming from the same multi-party traffic accident were consolidated for purposes of trial. We shall refer to them as the 'Shaw' case and the 'Thornton' case.

Appellants Martha Jean Luce and Richard B. Luce, who were named as defendants in both cases and were the only defendants named in the Shaw case, appeal from the consolidated judgment and particularly specify that their appeal is from the 'judgments' contained therein in favor of the plaintiffs in both cases and in favor of certain named co-defendants in the Thornton case. This appeal will be referred to as the 'Luce' appeal.

Appellants Joseph Holowaty, Peter Figol and Edmonton Wholesale Fruit & Produce Co., not being involved in the Shaw case, appeal from the judgment entered in favor of the plaintiffs, and certain co-defendants, in the Thornton case. This appeal will be designated the 'Holowaty' appeal.

The evidence, though somewhat conflicting, may be summarized as follows. On December 12, 1958, appellant Martha Luce was driving an automobile owned by her husband (also an appellant herein) easterly on Ventura Boulevard in Los Angeles, California. At the time of the accident, she was attempting to make a left turn into the driveway of Vic's Automotive Shop, said driveway being located in the middle of the block. She had picked up her car from Vic's Automotive Shop earlier in the day after the operators there had completed installation of a transmission that had been rebuilt by Valley Transmission. She had driven some fifty miles and noticed that this newly installed transmission was slipping, and, due to this defect she desired to return the car.

Ventura Boulevard at the scene of the accident consisted of three lanes of traffic in each direction. The evidence was conflicting as to the exact point on the street from which Mrs. Luce began her left turn, as to the speed of her car before and during the turn, and as to whether or not she had stopped before making the turn. However, it is undisputed that she turned at a time when there was a 'wall of traffic' approaching from the opposite direction some 300 to 360 feet distant, i. e., there was at least one approaching vehicle in each of the oncoming lanes. She managed to clear the first lane without incident, but the vehicles in the second, or middle lane, were forced to brake abruptly in order to avoid striking her. In the third, or curb, lane she was struck by an automobile operated by plaintiff and respondent Roy Shaw. Mr. Shaw sustained injuries for which he was awarded compensation by the judgment against appellants Luce which is here presented for review.

The first two cars in the middle lane succeeded in stopping, as did the third vehicle, a truck operated by respondent Thornton and in which respondent Schofield was a passenger. However, in order to avoid hitting Mrs. Luce, it was necessary for Mr. Thornton to lock his brakes. His truck slid some ninety feet before coming to a halt only two feet behind the car in front of him. Thornton had only enough time to release his foot brake and disengage the truck's gears before his truck was struck from the rear by a heavily laden truck operated by appellant Holowaty. Thornton and Schofield sustained the injuries for which they sought to recover in this action against the Luces, Holowaty, the owners of the truck operated by him, and also against the owners of Vic's Automotive Shop and Valley Transmission. Imperial Casualty & Indemnity Company also filed as plaintiff in intervention against the same defendants to recover by way of subrogation the moneys it had paid as insurance carriers of the owners of the Thornton truck. Upon instructions by the court, the action was dismissed as against Vic's Automotive Shop and Valley Transmission. The jury returned a verdict in plaintiffs' favor against the Luces, Holowaty, and the owners of his truck.

As heretofore indicated, the Holowaty appeal is taken only from the judgment in the Thornton case, whereas the Luces are appealing from the combined judgments in both cases. We consider it expedient first to eliminate certain of the assignments of error urged only by the Luces and which clearly are without merit.

Appellants Luce assert that it was error to refuse their motions for a directed verdict and for judgment notwithstanding the verdict. Since Mrs. Luce admitted that she knew of the condition of her transmission which impeded proper acceleration, (although she claimed it had not been quite so dramatic in its earlier failures) no claim is made that she was free from negligence. Her only argument is that in the Thornton case, unlike the Shaw case, there was an intervening agency whose negligence was not foreseeable and hence her negligence was, as a matter of law, not the proximate cause of the Thornton accident.

Questions of foreseeability and proximate case are for the jury, and where there is any evidence to support the jury's finding, an appellate court will not reweigh this evidence. (Jones v. City of South San Francisco, 96 Cal.App.2d 427, 435, 216 P.2d 25; Richardson v. Ham, 44 Cal.2d 772, 775-777, 285 P.2d 269.) It is a matter of common knowledge that where one car in a stream of cars is forced to come to a sudden halt, there is a clear and foreseeable danger that following vehicles will fail to effect a complete stop in time to avoid a collision. the fact that this many be due to the negligence of the operators of following vehicles in no way alters the foreseeability of the risk created. Such negligence, if any, would not be extraordinary but merely would contribute concurrently with the negligence of the party whose conduct brought about the initial abrupt stop. (Stewart v. Cox, 55 Cal.2d 857, 864, 13 Cal.Rptr. 521, 362 P.2d 345.) As indicated, the negligence of Mrs. Luce in voluntarily placing herself in a position of peril is conceded, so that nothing would be added by an extended comment upon the evidence. In all particulars, it was ample to justify the trial judge in submitting the question to the jury and thereafter allowing their determination to stand.

The Luces next assert that the trial court erred in allowing hypothetical questions to be put to an expert witness regarding the time required to traverse a given distance at a given speed or with a given rate of acceleration. Actually, the witness was asked such hypothetical questions based upon all speeds or rates of acceleration that the jury might, from the evidence, conceivably have found to have been involved. Hence, appellants cannot be heard to complain that such speeds or rates were different from those testified to by appellants or other witnesses. Complaint also is made that the court in its instructions assumed the existence of a fact not in evidence, or concerning which there was a conflict, when it stated that the Thornton truck came to a 'sudden stop.' Not only was there evidence of this fact, but there was no evidence whatsoever in conflict with it.

Finally, it is argued that it was error for the court to state to the jury, 'You will have to conclude from the conflict in the evidence at what point this turn was undertaken, whether it was approximately at a right angle to this alleyway, or whether it was 25 feet further to the west or 50 feet further to the west, or whatever figure was given it by the different witnesses.' (Emphasis added.) The Luce appellants assert that no witness testified that the turn was 50 feet west of the alleyway. Even if this were true, it would be immaterial, for it is patent from the very language of the instruction that the court was not indicating its opinion as to the distance involved and was not even asserting that any witness testified to any particular distance. It clearly was left to the jury first to determine what figures were given by the different witnesses and then which of those figures it found most probable.

The last separate assignment argued by the Luce appellants is that it was error to strike certain testimony contained in a deposition. During the taking of the deposition of respondent Thornton, the attorney who was examining him held a stop watch while Thornton estimated the time between the completion of his stop and his being struck by the Holowaty truck....