Tobler v. Chapman

• Decision Date: 12 April 1973
• Court: California Court of Appeals Court of Appeals
• Parties: Myra S. TOBLER et al., Plaintiffs and Appellants, v. Charlotte Edda CHAPMAN et al., Defendants and Respondents. Civ. 30133.

Page 614

107 Cal.Rptr. 614

31 Cal.App.3d 568

Myra S. TOBLER et al., Plaintiffs and Appellants, v. Charlotte Edda CHAPMAN et al., Defendants and Respondents.

Civ. 30133.

Court of Appeal, First District, Division 1, California.

April 12, 1973.

Hearing Denied June 7, 1973.

Rawles, Golden, Hinkle & Boyle, Ukiah, for plaintiffs-appellants.

Bell, Cox & Mannon, Conrad L. Cox, Ukiah, for defendants-respondents.

SIMS, Associate Justice.

Plaintiffs, a couple and their two minor children, have appealed from a judgment entered on a verdict in favor of the defendants Chapman in an action in which they sought to recover for personal injuries suffered in an automobile accident involving vehicles driven by Mr. Tobler, Mrs. Chapman and a third vehicle driven by a Mrs. Drumm. The action was dismissed as to the Drumms after the taking of all the evidence, but before counsel had argued the case. The plaintiffs contend that the trial court erred in denying their motion for a mistrial following alleged prejudicial misconduct by the attorney for the Chapmans, and in refusing to give plaintiffs' proposed instructions on res ipsa loquitur.

It is concluded that the remarks of which complaint is made do not constitute prejudicial misconduct necessitating a new trial, and that although the doctrine of res ipsa loquitur may have been applicable to the case on a conditional basis, there was no prejudicial error in refusing to instruct on that subject because under the circumstances of the case the jury must have accepted the defendants' exculpatory explanation of the accident.

On July 9, 1970, Iren and Myra Tobler, along with their sons Rex and Dale, were traveling south on Highway 101 after having visited their married daughter in Brookings, Oregon. At a point seven miles north of Laytonville, California, where Highway 101 runs through a mountainous region, their automobile was struck headon by the Chapmans' car causing injuries to all the Toblers. ¹

At the scene of the accident Highway 101 consists of a south and northbound lane divided by a center line consisting of a series of white painted dashes. Parallel to the center line, and approximately eleven and one-half to twelve feet away from it at each side of the road, is a solid white 'fog' line. There is then approximately one and one-half to two feet of asphalt beyond the fog line before the shoulder of the road is reached. There is also a turnout out area for the northbound lane, which is preceded by a highway sign one-quarter mile to the south reading: 'Turn-out: One Quarter Mile,' and which is marked at the point of turning by a standard highway sign reading 'Turn-out.' This turn-out, which was approximately 500 feet in length, began at a point, then gradually widened to a maximum width of 12 feet, and then narrowed to nothing again at the place where it turned back into the highway. The turnout was paved, but it was not as smooth or regular as the north and southbound lanes.

The detailed facts of the accident come mainly from the testimony of the Chapmans and the investigating officer as the Toblers were evidently hit before they were aware of what was happening ² and the Drumms, who were residents of Florida, did not appear to testify at the trial. The Drumms, with Mrs. Drumm driving, were in a 1969 Chrysler, towing a 1970 Airstream trailer north on 101. Mrs. Chapman testified that she and her husband had been following the Drumms for about 30 miles at a speed of 30 to 35 miles per hour when she saw a sign that said 'Slower Traffic Keep to the Right' and thought that if Mrs. Drumm pulled over, she would pass. Mrs. Chapman saw Mrs. Drumm put on her right turn signal and pull over into the turnout area, which Mrs. Chapman characterized at trial as a passing or slower traffic lane. Once the car and trailer were completely in the turnout area, Mrs. Chapman began to pass.

According to Mrs. Chapman, she began passing without crossing into the southbound lane. As she did so, the Drumm car and trailer, which had kept on moving, started back into the northbound lane, just as the rear of the Chapmans' car had cleared the front of the trailer. Approximately one second later the left front of the trailer bumped the right rear of the Chapmans' car and pushed it over into the other lane of traffic where it hit the Tobler car. The uncontradicted evidence is that the Toblers' car was completely within its southbound lane.

Mrs. Chapman stated that she had not sounded her horn when she started to pass, and she did not remember what she did when she saw the trailer moving back into her lane. She also claimed she had first seen the Tobler car while in the act of passing, and before the trailer started moving back into her lane. According to her, Mrs. Drumm told her after the accident that the Drumm car and trailer were pulled over 'to pick up steam or get more speed.' On cross-examination Mrs. Chapman said that the Drumms' pulling over had helped her see the road ahead of her and also admitted that she had said in a prior statement that she could see the Tobler vehicle before Mrs. Drumm pulled over.

The accident was investigated by Officer Wayne F. Coon of the California Highway Patrol who had been assigned to the general area for 12 or 13 years. He testified that the left front of the Toblers' 1966 Ford Sedan and the left front of the Chapmans' 1968 Oldsmobile were damaged extensively as was the left front of the Drumms' trailer. He spoke also of the account of the accident Mrs. Chapman gave him after it occurred, and this evidence corroborated her trial testimony. He also testified as to statements Mrs. Drumm made to him, but these were admitted only against the Drumms.

Officer Coon said he found no skid marks at the scene of the accident although he did find gouge marks on the highway, which he was able to trace to the left front of the Chapman vehicle. Even with this evidence, he could not fix the exact point of impact between either the Chapman car and the Tobler car or between the Chapman car and the Drumm trailer. Coon stated that in his opinion the scene of the accident was an unsafe place for a vehicle to attempt to pass a car of approximately 16 to 18 feet in length (the average length of a car) when it was pulling a trailer of approximately 20 to 22 feet in length (as was the Drumms' trailer). This is because the distance that the driver of the passing automobile could see is too short to determine if the road is clear due to the fact there is a curve in the road north of the turnout area. Additionally, due to the fact the turnout begins narrowing into the northbound lane, a car trying to pass another automobile would have to move out into the southbound lane.

On the other hand, he testified that the purpose of the turnout area was for slow moving vehicles to pull out and let other vehicles proceed by and that if a vehicle moved into the turnout area, a passing car in the northbound lane would be in proper position and such a pass would not be an improper one.

I

When the jury was first convened, plaintiffs were presenting a case against two sets of defendants, the Drumms and the Chapmans, and plaintiffs' counsel told the jury in his opening statement that this collision occurred 'through the combined fault of both the driver of the Drumm and of the Chapman vehicles.' On the morning of the fourth trial day, out the jury's presence, plaintiffs' counsel announced that the action was dismissed as to the Drumms, but as to them alone. Counsel for the Drumms then stated: 'At this point I reluctantly leave the case. I had my argument all prepared.'

The court then asked the attorneys how he should handle the dismissal and plaintiffs' attorney said: 'I would request simply that (you say) the Drumms have been dismissed from the case, that the case has been dismissed as to the Drumms period.' The Chapmans' counsel said that would be fine with him. Thus, when the jury returned, the court simply announced: 'Ladies and Gentlemen, the case has been dismissed as to the Drumms, represented by Mr. Cook.'

Subsequently, in his argument to the jury, plaintiffs' attorney was directing the jury's attention to various Vehicle Code sections bearing on the case and said of one of them: 'This one I was about to read to you is no longer applicable since the Drumms aren't in this case any longer.' This is the only reference he made to the Drumms' dismissal.

Defendants' counsel then gave his argument and said he would begin with the issue of damages but was not particularly prepared on this matter since Mr. Cook had been going to deal with it. He then stated: 'However, when the case was dismissed, When peace had been made between the Toblers and the Drumms, it then became my duty.' (Emphasis added.) Appellant's counsel objected to the statement, claiming it was prejudicial and asked that the jury be instructed that there was no evidence that peace had been made between the Drumms and the Toblers. The court then said: 'I will remind you once again, and the Court will instruct you later that any statement made by counsel is not evidence. And there is no evidence as to what was discussed.' Defendants' counsel then proceeded by saying: 'When the case was dismissed as to the Drumms this morning, it then became my duty to discuss the damages with you.'

At the next recess, certain proceedings were held in chambers as follows: '(Plaintiffs' counsel): Your Honor, I move for a mistrial. And this being the first opportunity I could make the motion out of the presence of the jury, I move now, and I cite for the mistrial (counsel's) statement to the jury, telling them the Toblers have made their peace with the Drumms; that the reasonable effect of that language is to tell the jury the Toblers have settled with the Drumms.

'This comment is extremely prejudicial to the Toblers, because the evidence of the Chapmans' liability may be considered by the jury to be less strong than the evidence of the...