Winningar v. Bales

• Decision Date: 26 July 1961
• Citation: 14 Cal.Rptr. 908,194 Cal.App.2d 273
• Parties: Frederic W. WINNINGAR, Plaintiff and Appellant, v. Homer Ellsworth BALES, III, and Homer E. Bales, Defendants and Respondents. Civ. 19459.
• Court: California Court of Appeals Court of Appeals

Page 908

14 Cal.Rptr. 908

194 Cal.App.2d 273

Frederic W. WINNINGAR, Plaintiff and Appellant, v. Homer Ellsworth BALES, III, and Homer E. Bales, Defendants and Respondents.

Civ. 19459.

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

July 26, 1961.

Richard M. McGowen, Los Altos, Hugh F. Connolly, Burlingame, of counsel, for appellant.

Popelka, Graham, Hanifin & Bonney, San Jose, for respondents.

BRAY, Presiding Justice.

Plaintiff appeals from a judgment after jury verdict in favor of defendant Homer Ellsworth Bales, III. Questions Presented.

1. Alleged error in instructions: (a) contributory negligence; (b) 'mere happening of an accident.'

2. Should new trial have been granted because (a) of alleged prejudice of juror Macy; (b) of defendant's alleged statement in the presence of a juror concerning lack of insurance?

Evidence.

Plaintiff's automobile was stopped behind three or four cars which were stopped for a red light. He has no recollection of giving an arm signal prior to stopping. Defendant's automobile was following that of plaintiff. Defendant saw the line of cars ahead of him beginning to stop, but plaintiff at that time was not stopping. (Plaintiff contends that prior to the impact he had come to a complete stop for a period of 'two changes of lights.') Defendant testified, 'There was a slight distraction at the curb. I glanced over and glanced back and he [plaintiff] had his brakes on, and I put mine on,' but 'I wasn't able to stop in time * * *' Defendant stated that he was distracted for only a second.

1. Instructions. (a) Contributory Negligence.

Plaintiff contends that there was no evidence to justify the giving of instructions on contributory negligence. 'Cases involving rear-end collisions are legion. Although the contention is made often that the leader alone, or the follower alone, is guilty of negligence, in general it has been held that the case as presented by each party creates a question of fact for the jury and not a question of law for the court.' Lowenthal v. Mortimer, 1954, 125 Cal.App.2d 636, 638, 270 P.2d 942, 943. However, if the evidence is such that from it only one inference reasonably can be drawn, then the question of contributory negligence becomes a matter of law, and this court would not be bound by a finding of the jury or the trial court to the contrary of that inference, but if more than one inference reasonably can be drawn, then the question is one of fact for the jury. See 3 Witkin, California Procedure, p. 2251.

Defendant testified that he was following plaintiff's car at a distance of one car length behind it and had been following it for two or three blocks; that there was a 'continuous string of cars' in front of him and that the fast lane to his left was also filled with cars. Defendant saw the car in front of plaintiff begin to stop for the light. It was then that defendant turned his attention to the curb for only a second. When he again looked ahead, plaintiff had his brakes on and defendant then put his on, too late to stop. Plaintiff testified that he knew cars were following to his rear, but he could not recall giving an arm signal in bringing his car to a stop. He also asserted that he was fully stopped at the moment of impact.

Plaintiff contends that defendant had plenty of warning that plaintiff would have to stop and that an arm signal could not have prevented the collision and hence he was not guilty of contributory negligence in not giving it.

While the evidence as to traffic conditions is favorable to plaintiff's version, there is the fact that there is no evidence to contradict the implication that plaintiff failed to signal. Despite the possibility that the signal would have added nothing as a warning since the traffic conditions were already noticed by defendant (notice, by the way, to which defendant paid no attention), we cannot say as a matter of alw that a reasonable inference could not be drawn that an arm signal given as plaintiff started to stop would not have been more effective as a warning to defendant than the traffic conditions which remained unaltered for a span of blocks and which did not seem to warn defendant. Particularly is this so as plaintiff's car was moving when defendant glanced away, and defendant's distraction was for only a second. Therefore we cannot say as a matter of law that a failure to signal did not contribute to the accident. As a party to an action has a right to instructions on his theory of the case if it is reasonable and finds support in the pleadings and the evidence, or in any inference which properly may be drawn from the evidence (Edgett v. Fairchild, 1957, 153 Cal.App.2d 734, 738, 314 P.2d 973), the court did not err in instructing on this subject.

(b) The Mere Happening of an Accident.

The court instructed that the mere happening of an accident did not prove that it was caused by the negligence of anyone. Plaintiff did not request or offer any instruction on res ipsa loquitur. '[I]n the absence of a request for instructions on the doctrine of res ipsa loquitur, it is not reversible error to give the instruction on the mere happening of an accident if the application of the doctrine depends upon the determination of disputed facts. Barrera v. De La Torre, 48 Cal.2d 166, 170 et seq., 308 P.2d 724. In such a case a request for appropriate instructions on the doctrine is essential so that the court may be apprised of the plaintiff's reliance on it and have an opportunity to explain the relationship between the doctrine and the instruction on the mere happening of an accident. In the absence of such a request, the only situation in which the giving of the challenged instruction was held to constitute error was where the res ipsa loquitur inference arose as a matter of law from facts conceded by the defendant. Jensen v. Minard, 44 Cal.2d 325, 329, 282 P.2d 7.' Phillips v. Noble, 1958, 50 Cal.2d 163, 166-167, 323 P.2d 385, 386.

In Guerra v. Handlery Hotels, Inc., 1959, 53 Cal.2d 266, 1 Cal.Rptr. 330, the Supreme Court is highly critical of the 'mere happening' instruction even in cases where the doctrine of res ipsa loquitur is not applicable as a matter of law, but held that the giving of it was not prejudicial in that case because the question of the plaintiff's contributory negligence was raised. This is not a case where the doctrine of res ipsa loquitur applies as a matter of law. The inference of plaintiff's contributory negligence prevents the doctrine from applying. The cases cited by plaintiff such as Merry v. Knudsen Creamery Co., 1949, 94 Cal.App.2d 715, 211 P.2d 905, holding that when a moving car hits a stopped car the doctrine of res ipsa loquitur will apply, are not in point here, for the reason that in none of those cases was there any question of contributory negligence on the part of any of the plaintiffs. As said in 37 California Law Review, pages 204-205, 'It is only where the plaintiff is shown to have been stationary, or his own fault is eliminated by some other specific evidence, that res ipsa loquitur can apply.'

There was no prejudicial error in giving the 'mere happening' instruction.

2. (a) Alleged Prejudice of Juror.

Plaintiff after filing notice of motion to move for new trial filed the affidavits hereafter discussed. Defendant filed a motion to strike these affidavits. At the hearing of the motion for new trial the court first considered the motion to strike. The court stated that it had read the affidavits, or at least some of them. Considerable argument was had concerning their admissibility. During the argument the contents of the affidavits were discussed at some length. After argument on other points raised by plaintiff, both motions were submitted. Later the court ordered the affidavits stricken and a new trial denied. As the affidavits were stricken, the court thereby found, in effect, that the affidavits did not show that juror Macy misrepresented her state of mind on voir dire examination. If this finding is correct, the affidavits were inadmissible, and hence properly stricken. See People v. Webb, 1956, 143 Cal.App.2d 402, 420, 300 P.2d 130.

Affidavits may be used to impeach the verdict of the jury not only when within the general rule, that is, where the verdict was reached by lottery (Code Civ.Proc. § 657, subd. 2), but also 'where a juror could have been challenged for cause on voir dire but avoided such challenge by testifying falsely as to his state of mind. In such a case the disqualification had its origin before the jury was impanelled.' People v. Webb, supra, 143 Cal.App.2d at page 419, 300 P.2d at page 142; see also Crespo v. Cook, 1959, 168 Cal.App.2d 360, 336 P.2d 31.

In examining the first ten jurors on vior dire plaintiff asked as to their state of mind concerning the awarding of damages to a person injured solely through the negligence of another; that damages if proved are a matter of right and not of gift, and whether they had any prejudice against an injured party seeking redress in court, and whether, if the evidence warranted it, they would award plaintiff $50,000, etc. When Mrs. Macy's turn came to be examined she was asked if she had heard the questions asked the other jurors. She said she had. She was then asked if her anwers would be substantially the same as those made by the other jurors and if she felt she...