De Yo v. Umina

• Decision Date: 24 November 1953
• Citation: 263 P.2d 623,121 Cal.App.2d 505
• Court: California Court of Appeals Court of Appeals
• Parties: DE YO v. UMINA et al. Civ. 19637.

Page 623

263 P.2d 623

121 Cal.App.2d 505

DE YO v. UMINA et al.

Civ. 19637.

District Court of Appeal, Second District, Division 3, California.

Nov. 24, 1953.

Rehearing Denied Dec. 10, 1953.

Hearing Denied Jan. 20, 1954.

Lynch & Reilly, Los Angeles, for appellant.

Sampson & Dryden, Los Angeles, for respondents.

SHINN, Presiding Justice.

Plaintiff's automobile collided with a parked truck of defendants. In this action for damages plaintiff appeals from an adverse judgment in a jury trial.

Gerhart Street, in the County of Los Angeles, is 100 feet wide, and runs north and south. It is divided into two paved roadways, each 35 feet wide, by a 30-foot center strip, which is planted with trees and grass and bounded by curbs.

On August 4, 1952, at about 11:30 p. m. defendant Antonio Umina parked a flat-bed truck on the east side of the westerly roadway of Gerhart Street, facing south, parallel with the dividing strip, and with the left front wheel touching the westerly curbing of the strip. All lights were extinguished, and the ruby reflectors mounted on the rear of the truck were caked with dirt so that they did not reflect the lights of a police car focused on them from a distance of 40 feet.

At about 2:20 the following morning, plaintiff's passenger car collided with the right rear portion of defendant's truck. Plaintiff, who was driving alone, suffered serious injuries, including damage to his brain resulting in a partial amnesia which prevented him from remembering anything that had occurred immediately preceding the accident. The evidence indicated that immediately prior to the collision plaintiff had been driving south in the left-hand portion of the west roadway. There was no eyewitness to the accident.

The principal question is whether the jury was properly instructed to the effect that it was the duty of a motorist traveling south on the west roadway of Gerhart Street to keep on the right or west half of the roadway. If the code made it the duty of motorists to travel on the right half of the roadway in question defendant violated the law when he parked his truck against the left curb of the roadway, and it was a question for the jury whether plaintiff was driving unlawfully when he collided with defendant's truck. Defendant contends that plaintiff was required to drive on the right half of the roadway, and in so contending, necessarily concedes that he parked his truck unlawfully. Vehicle Code, sec. 525. ¹

Defendants requested instructions which, after modification by the court, were given as follows:

(1) 'In the State of California we recognize what is known to the law as the defense of contributory negligence. If you find, under the evidence, that the defendant was negligent in the manner in which he parked his truck, and if you further find that the plaintiff violated the law with relation to driving on the right hand side of the street, and if you find that such violation constituted negligence, and you further find that such negligence on the part of the plaintiff proximately contributed in any degree, no matter how slight, to the happening of the accident, and you further find that all of said facts were proven and established by a preponderance of the evidence by the defendants, then the plaintiff would be subject to the rule of contributory negligence and your verdict should be for the defendants on the issue of contributory negligence.'

(2) 'Section 525 of the Vehicle Code of the State of California reads in part as follows: 'Drive on Right Side of Roadway. Upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway.'' Plaintiff urges two criticisms: (1) He was not required to stay on the right half of the roadway at all; and (2) if he was required to do so under normal conditions, the court should have stated the conditions that would have excused him for being on the left half.

It is quite necessary that motorists should know whether they must travel on the right-hand half of roadways of divided highways which are not designated and signposted as one-way streets, except when passing, or preparing to make a left-hand turn or when the right-hand half is obstructed. As we shall see, an inadequate understanding of the law could lead one into the mistake of regarding such roadways as one-way streets upon which traffic could proceed as freely on one half of the street as upon the other.

Gerhart Street is a highway divided into two roadways. Each roadway is for one-way traffic as required by section 525(c) by reason of the dividing strip. It was not otherwise designated and was not signposted as a one-way street. Other roadways may be converted into one-way streets by being designated and signposted as such, even though they are not roadways of a divided highway. Vehicle Code, secs. 459, 465. One-way city streets made such by local authorities are examples. The requirement of section 525 that vehicles be driven on the right half of roadways applies to all roadways other than those specifically excepted, and there is no exception of roadways that are created by the division of a highway. Section 525(a)(4) sets up a special class of roadways consisting of those that are designated and signposted for one-way vehicular traffic. These are referred to as one-way streets as distinguished from roadways of divided highways. Vehicle Code, sec. 529. On one-way streets, namely, streets designated and signposted as such, vehicles need not comply with the general requirement that they be driven on the right half of the roadway. No vehicle shall be operated or moved thereon in a direction opposed to that indicated by such description or signpost. Vehicle Code, sec. 604. Another class of roadways, of which Gerhart Street is an example, consists of those that have been or may be created by the division of highways as described in section 525(c), and which are not designated and signposted for one-way traffic. On the signposted one-way streets the left half may be used in the same manner as the right half. On roadways of a divided highway...