Van Pelt v. Carte

• Decision Date: 19 November 1962
• Citation: 209 Cal.App.2d 764,26 Cal.Rptr. 182
• Court: California Court of Appeals Court of Appeals
• Parties: Bernice VAN PELT, Plaintiff and Appellant, v. John W. CARTE et al., Defendants and Respondents. Civ. 6864.

Page 182

26 Cal.Rptr. 182

209 Cal.App.2d 764

Bernice VAN PELT, Plaintiff and Appellant, v. John W. CARTE et al., Defendants and Respondents.

Civ. 6864.

District Court of Appeal, Fourth District, California.

Nov. 19, 1962.

Hennigan, Ryneal & Butterwick, by Fred H. Ryneal, Riverside, for appellant.

King & Mussell, by John Lewis King, San Bernardino, for respondents.

SHEPARD, Justice.

FACTS

On November 18, 1958, between 1:15 and 1:30 p. m. on a dry, clear day, plaintiff was riding as a guest passenger in the right hand front seat of the Hudson automobile owned and driven by her father, Walter Whittaker, in a northerly direction on Riverside Avenue (hereinafter called Avenue) at its intersection with U. S. Highway 99 (hereinafter called Highway) a few miles west of San Bernardino. At said intersection the travelled portion of Avenue was about 36 feet wide, with one lane for northbound and one lane for southbound traffic. Highway runs generally east and west with two marked lanes for eastbound and two marked lanes for westbound traffic, each lane a width of 12 feet, an unimproved center parkway of 84 feet. A shoulder 12 feet wide abutted the south traffic lane of Highway. Even with the south side of said shoulder facing northbound traffic stood a stop sign and across the northbound lane were painted on the road surface the white stop bars. Plaintiff says that the Hudson stopped 'at the Highway.'

Witness Daly said that he saw a car 'setting' there. Later he said that when he 'saw' it, 'It started to move.' Defendant says that he saw the Hudson stop and when he next saw it, it was stopped at the south edge of the eastbound lanes. The fourth eyewitness first saw the Hudson when it was already in the south lane of the Highway. There is, then, no conflict on the subject of the Hudson having stopped somewhere near the south edge or shoulder of Highway and that it thereafter started and moved directly into the path of defendant's car in the Highway's northerly eastbound lane.

Of the three witnesses who remember the action of the various cars immediately prior to the accident, there is little serious conflict. At this point, Highway stretches straight west more than two miles. At a point 750 to 1,000 feet west of the intersection, three cars, spaced one behind the other, were proceeding east in the south lane of Highway at about 45 to 50 m. p. h. At about that point, defendant's car, a Pontiac, moved to the northerly eastbound lane and started to pass the other two cars, slightly increasing his speed. He then saw the Hudson come from the south on Avenue and stop at the south edge of the shoulder of Highway. Defendant also saw, in his own lane, a long truck with semi-trailer going east, signalling a left turn to proceed north on Avenue. Defendant allowed his car to slow somewhat, waiting for the truck to make the turn and clear the intersection. When the truck made the turn it stopped at the westbound lanes of Highway, blocking the northbound lane of Avenue but clearing defendant's eastbound lane. The southbound lane of Avenue was also blocked by a car stopped at the stop sign about six feet north of the northerly edge of the eastbound lanes. When the truck cleared defendant's lane defendant speeded up somewhat. At 400 to 500 feet from the intersection defendant again looked at the Hudson. It had moved about eight feet to the south edge of the south lane but was stopped. Defendant's attention then returned to the truck. When he next noticed the Hudson he was 50 to 100 feet from the Hudson, travelling at 45 to 55 m. p. h. and the Hudson was moving into defendant's lane, i. e., the northerly eastbound lane. It was then too late to avoid the collision. Defendant attempted to turn his car and put on the brake. The highway showed no tire marks and it seems likely that the brakes never took hold. Estimates of speed of defendant at point of impact range from 40 to 55 m. p. h. The Hudson was stopped or moving very slowly. It was nine or ten feet from the rear of the truck trailer. The rear of the truck trailer was about six feet north of the north edge of the eastbound lanes. Exactly how far steel extended over the end of the truck is not clear but it did have a red flag tied to it. Thus, the Hudson had the defendant's lane of travel blocked. The record is not entirely clear as to whether the cars in the southerly eastbound lane passed behind the Hudson before or after the instant of impact. Defendant did not notice them. Witness Daly was not clear on the point. As to the immediate events of the accident, plaintiff testified,

'I remember stopping at the highway, pulling across the highway and my father putting on the brake, which surprised me.'

Later, in answer to the question by defense counsel,

'Now, did you look for traffic after the car was stopped and before it started up?'

plaintiff said,

'I don't know.'

Plaintiff had no further memory of the events of the accident. The jury returned a verdict for defendant.

CONTRIBUTORY NEGLIGENCE

Instructions included standard form instructions on contributory negligence. Plaintiff does not criticize the form of the instructions but contends that it was prejudicial error to instruct on the issue of contributory negligence because there was no evidence whatever of contributory negligence on the part of plaintiff.

On the other hand, defendant contends that plaintiff's own testimony shows that she was awake and alert and did notice that the car stopped at the highway, started forward again and the brake was put on, surprising her; that from this the jury were entitled to infer that plaintiff saw that three cars were bearing down on the car in which plaintiff was riding, that directly ahead the Avenue was blocked, that imminent danger was apparent, and that plaintiff was obligated to call the driver's attention thereto or to protest at moving forward.

The rule of law defining a guest's duty to observe traffic is concisely stated in Robinson v. Cable, 55 Cal.2d 425, 427, 11 Cal.Rptr. 377, 378, 359 P.2d 929, 930, as follows:

'In the absence of some fact brought to his attention which would cause a person of ordinary prudence to act otherwise, a person riding in an automobile is not charged with the responsibility of observing the condition of the traffic on the highway, and his mere failure to do so, without more, will not support a finding of contributory negligence.'

In Pobor v. Western Pac. R. R. Co., 55 Cal.2d 314, 324(13, 11b), 11 Cal.Rptr. 106, 359 P.2d 474 the same rule is stated in different words.

From the foregoing it is clear that if, from the evidence, the jury could legitimately draw some inference showing that contributory negligence on the part of plaintiff proximately contributed to the causation of the accident and injuries complained of, the giving of the instruction on contributory negligence is proper and the question becomes one of fact for the jury. If the evidence does not admit of any such inference the giving of the instruction is error.

Defendant appears to consider the testimony of a doctor relating to plaintiff's statement at the hospital that she had no recollection of the accident, in which testimony the doctor indicated that the lack of memory at that time (in the hospital) was probably due to medication, would permit the jury to infer that plaintiff's testimony at the trial to the effect that she only remembered certain things, was false. We are unable to follow defendant's reasoning to the results claimed. Plaintiff's injuries included fractures of the left arm, a collarbone, some ribs, zygoma or cheekbone and other facial bones, as well as multiple fractures of the skull, including the frontal region and the left side of the skull extending down into the base of the skull. (Many of the facial and cranial fractures we cannot identify because much of the testimony referred to exhibits and no exhibits were brought to us.) The doctor was directly asked about retrograde amnesia (loss of memory of events preceding the blow.) He answered, 'It is difficult to state. * * *'

In any event, it must be remembered that the burden of proof on defendant's defense of contributory negligence rests on the defendant, not the plaintiff.

As was said in Gadbury v. Ray, 171 Cal.App.2d 150, 155, 340 P.2d 66, 69,

'The burden of showing contributory negligence of the guest is upon the driver of the car by whose negligence he is injured and in the absence of any showing to that effect the plaintiff in a death or loss of memory case may rely upon the presumption that the guest exercised due care for his own safety, in which event an instruction on contributory negligence should not be given.'

Unless contributory negligence appears from plaintiff's own evidence, defendant must plead and prove it. (...