Witt v. Jackson
| Decision Date | 26 June 1961 |
| Court | California Court of Appeals Court of Appeals |
| Parties | James Robert WITT, and Julius J. Grossman, Plaintiffs and Appellants, v. Raymond Lester JACKSON, Defendant and Respondent. City of Los Angeles, a municipal corporation, Intervenor-Appellant. Civ. 24854. |
Murray Jackson, Los Angeles, for appellants Witt and Grossman.
Roger Arnebergh, City Atty., Edwin F. Shinn, Deputy City Atty., Sanford M. Gage, Deputy City Atty., Los Angeles, for appellant City of Los Angeles.
Spray, Gould & Bewers, Los Angeles, for respondent.
This is an action by James Witt and Julius Grossman to recover damages for personal injuries which they received in an automobile collision between the car they were driving and that of Raymond Jackson. The City of Los Angeles, as the owner of the automobile driven by plaintiffs, intervened to recover for damage to the automobile and for payments made to each plaintiff for compensation and medical expenses. The jury returned verdicts against both plaintiffs and against intervenor and in favor of defendant Jackson. Judgment was rendered thereon and a motion for a new trial was denied. Plaintiffs and intervenor appeal.
The accident took place at 2:30 a. m. on March 3, 1958, on Sepulveda Boulevard in Los Angeles. The weather was clear and dry, traffic was light, the street was lighted by overhanging globes placed approximately 200 feet apart, there were no road defects or obstructions at the place of the accident. Sepulveda Boulevard is a straight north-south street having two north-bound and two south-bound lanes separated by a double white line. The impact occurred on the north-bound lane of travel next to the double white line. The automobile operated by plaintiff Witt was a marked black and white police squad patrol car equipped with two red lights mounted on top and toward the front of the automobile which shone both to the front and to the rear. Plaintiff Grossman occupied the front right seat of the vehicle at the time of the accident. Both plaintiffs were in uniform and were on duty as police officers employed by intervenor. As plaintiffs were proceeding north in the lane next to the double white line they were struck from the rear by the automobile operated by defendant Jackson. All headlights and tail lights of both vehicles were operating normally at the time of the accident.
The testimony relating to how the accident occurred is as follows: Plaintiffs testified that they were traveling north on Sepulveda in the lane next to the double white line when they observed a 1957 Dodge automobile also traveling north-bound on Sepulveda approximately one-quarter to one-half mile south of the point of impact. This vehicle was traveling at approximately 20 to 25 miles per hour in the lane to plaintiffs' right. The posted speed limit was 45 miles per hour. They suspected at the time that the driver was intoxicated in violation of section 502 (now § 23102) of the Vehicle Code. At some time during the one-half mile or less, Witt had looked in his rear view mirror but had not observed any traffic. Prior to impact he pulled the squad car alongside the Dodge which was being operated by Aaron Shanedling, a witness herein. Plaintiffs also testified that they had switched on the red roof lights of the squad car some time before pulling alongside the Dodge and that plaintiff Grossman then flashed his flashlight at the driver of the Dodge and that these were both normal police procedures. As the Dodge was pulling off the roadway in the process of stopping, witt looked in his rear view mirror and saw headlights approaching rapidly and heard brakes or tries screeching. The squad car was then struck from the rear by what proved to be the front of the automobile owned and operated by defendant Jackson. Plaintiffs' testimony (including prior admissions) as to when the red lights on the roof were turned on varies from the moment after they had pulled alongside the Dodge to five to ten seconds before the actual impact. Witt called for an ambulance and police assistance over his two-way radio.
Defendant Jackson testified that he was a California highway patrolman, off duty, returning home from his brother's home in Inglewood at the time of impact. He was driving his own automobile, was dressed in his uniform, but was not wearing his badge. He admitted having had two glasses of beer with his lunch during the proceeding afternoon and a quart that evening at his brother's house. Defendant further testified that when he was about 100 years back of what turned out to be the squad car, he first observed this vehicle by seeing its red tail lights in the lane to his right proceeding north on Sepulveda and that he, defendant, was traveling in the lane next to the double white line. He then observed the squad car make a lane change into his lane when there was a distance of approximately 100 feet between his car and the squad car. He was traveling approximately 35 miles per hour and the squad car was traveling at a slower rate of speed. He also then observed for the first time the Dodge driven by Shanedling in the right lane, also traveling at a speed slower than his own. He testified that he did not apply the brakes of his automobile at the time that he observed the squad car changing lanes but that when he was 50 to 75 feet from the squad car he saw the red roof lights go on and at that time he had his foot on his brakes. He testified that five or ten seconds elasped from the time that he first observed the roof lights switch on until the time that he struck the squad car in the rear. Defendant testified that he did not swerve in either direction to avoid the impact since he did not feel he could do so with safety; that he never observed any flash of light between the squad car and the Dodge; and that his tires and brakes were in good condition before the accident.
Shanedling testified that although he had observed the headlights of a vehicle to the rear he didn't know in which lane the car was traveling. He first discovered it was a police car when it pulled alongside and the flashlight attracted his attention. He then proceeded to slow up and pull over to the shoulder of the road and that from the time that he first observed the squad car until he heard the crash at least five seconds had elapsed. After the accident he observed that both cars were in the lane next to the double white line.
Two investigating officers testified that they found skid marks left by defendant's automobile which were 47 feet in length; that they observed defendant and that in their opinion he was under the influence of alcohol to the extent that his ability to dirve was impaired and that he should not have been driving. One of the officers testified that at the time of the accident defendant gave him his version of the accident, part of which was that it was difficult to estimate his distance behind the police car, but that he had been following it for about 200 yards when the police car's red lights came on immediately when plaintiffs started to stop. He said he hit his brakes immediately but there was no chance of stopping in time and he hit the rear of the other car. He said he could see no reason for the police car to stop. There was nothing ahead of him and he saw no other cars near him. Defendant testified that he did not recall stating that he had not observed any other vehicle.
Defendant's brother testified that defendant was not under the influence of alcohol at the time he left his house (which defendant says was about 2:00 a. m.) There was additional testimony as to defendant's lack of sobriety two hours following the accident. Injury to both plaintiffs is undisputed, as was damage to the squad car.
Among the contentions of plaintiffs and intervenor (hereinafter referred to as plaintiffs) is that the court erred in instructing the jury on the defense of contributory negligence. In addition to the traditional instruction regarding contributory negligence the court also read the contents of sections 544(c) (now § 22109) and 526(a) (now § 21658(a)) of the California Vehicle Code to the jury. Section 544(c) reads as follows: 'No person shall stop or suddenly decrease the speed of a vehicle on a highway without first giving an appropriate signal in the manner provided in this chapter to the driver of any vehicle immediately to the rear when there is opportunity to give such signal.' Section 526(a) is to the effect without first ascertaining that it can be without first ascertaining that it can be done with safety. The jury was also instructed that a violation of either of these sections constituted negligence as a matter of law.
Plaintiffs first argue that there is no substantial evidence to support this defense. There is no merit in this contention. Defendant's testimony as to how the accident occurred is as follows: He further testified that he was about 50 to 75 feet away when the roof lights on plaintiffs' car went on. Plaintiff Witt testified to the effect that his suspicion was aroused by the speed of the Dodge of only 25 miles per hour in a 45 mile per hour speed zone and that he pulled alongside to indicate to the driver that he should pull over and that after the Dodge began to...
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