Wooldridge v. Mounts

• Decision Date: 30 January 1962
• Citation: 18 Cal.Rptr. 806,199 Cal.App.2d 620
• Court: California Court of Appeals Court of Appeals
• Parties: Fred WOOLDRIDGE, Jr., a minor, etc., Plaintiff and Respondent, v. Joe G. MOUNTS and Granite Materials Company, Defendants and Appellants. Civ. 25234.

Page 806

18 Cal.Rptr. 806

199 Cal.App.2d 620

Fred WOOLDRIDGE, Jr., a minor, etc., Plaintiff and Respondent, v. Joe G. MOUNTS and Granite Materials Company, Defendants and Appellants.

Civ. 25234.

District Court of Appeal, Second District, Division 4, California.

Jan. 30, 1962.

Schell & Delamer and Fred B. Belanger, Los Angeles, for appellants.

Alvin E. Honoroff, Bernard Echt and Abe Mutchnik, Los Angeles, for respondent.

BURKE, Presiding Justice.

This is an action for personal injuries in which Fred Wooldridge, Jr., a minor, through his guardian ad litem, recovered a verdict and judgment in the sum of $6,000 against defendants Joe G. Mounts and Granite Materials Company. Defendant Mounts was employed by defendant Granite as a truck driver.

Plaintiff, a 16-year old high school student at the time of the accident, was part of a crowd of two hundred to three hundred students which had assembled to watch a fist fight in the street where the accident occurred after school on September 16, 1957.

At the time of the accident defendant Mounts was driving a Granite truck with a dump bed on it and with a trailer behind it. Mounts was driving on the street where the fight occurred but his passage was blocked by the crowd for a period of fifteen to twenty minutes.

When the truck moved plaintiff who was on the edge of the mob was caught by the left front wheel of the trailer and thrown to the ground. The trailer tires then passed over plaintiff's leg causing the injuries for which plaintiff brought this suit.

Defendants raise two basic contentions on their appeal: (1) plaintiff was guilty of the violation of a malum prohibitum statute, which violation was the proximate cause of his injuries and he is therefore barred from recovery of damages for such injuries; (2) it was reversible error for the court in discovery proceedings prior to the trial, to 'strike interrogatories relevant to the issues to be tried after another trial court judge has made an order permitting the institution of further discovery' proceedings.

In support of their first contention, defendants point out that at the time of the happening of the accident section 80.40 of the Los Angeles Municipal Code provided as follows with reference to standing in roadways:

'No person shall stand in any roadway other than in a safety zone or in a corss-walk if such action interferes with the lawful movement of traffic.

'This section shall not apply to any police officer, surveyor, streetsweeper or other person when necessary upon a street in line of duty.'

Defendants contend plaintiff was standing in the roadway and in so doing he interfered with the lawful movement of traffic. Defendants further argue there was no evidence to show plaintiff's conduct was excusable or justifiable.

In the case of Newton v. Thomas, 137 Cal.App.2d 748, 762, 291 P.2d 503, 511, section 40 of an ordinance of the city of Gilroy, which provided 'No person shall stand in any roadway * * * if such action interferes with the lawful movement of traffic,' was held to be invalid. The court referred to Stricklin v. Rosemeyer, 52 Cal.App.2d 558, 561, 126 P.2d 665, 667, which held an ordinance of the City and County of San Francisco making it 'unlawful for any person to be in any roadway other than a safety zone * * *' was invalid. This action followed the decision in Pipoly v. Benson, 20 Cal.2d 366, 372, 125 P.2d 482, 147 A.L.R. 515, in which it was decided the use of public roadways by pedestrian traffic is a matter covered by the Vehicle Code. The court in the latter case referred to section 21954, subdivision (a) of the Vehicle Code, which provides: 'Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway.'

In a more recent case, Holman v. Viko (1958), 161 Cal.App.2d 87, at page 93, 326 P.2d 551, at page 556, holding a Los Angeles Municipal Code section (80.39) dealing with regulation of pedestrian traffic invalid, the court reaffirmed the doctrine, saying:

'* * * use by pedestrians of roadways between intersections is a subject which has been preempted by State statute, subject only to exceptions expressly (not impliedly) declared by the Legislature; * * *.'

Based upon these decisions we hold the provisions of section 80.40 of the Los Angeles Municipal Code are invalid and cannot be considered in the case before us. The applicable section of the Vehicle Code, section 21954 (formerly Vehicle Code, § 562), requires 'Every pedestrian crossing a roadway at any point other than within a marked crosswalk * * * shall yield the right-of-way to all vehicles upon the roadway.' It does not follow from this section, however, that every pedestrian who gets hit by a vehicle while failing to yield the right-of-way is guilty of contributory negligence as a matter of law.

As said in Shipway v. Monise, 59 Cal.App.2d 565, 571, 139 P.2d 60, 63, '* * * the real question of fact in such a case is whether the required care has been exercised and not merely whether or not the right of way has been actually yielded.'

In the recent case of Peterson v. Grieger, Inc., 57 A.C. 17, 30, 17 Cal.Rptr. 828, 836, 367 P.2d 420, 428, the Supreme Court in an action for damages sustained by a minor bicyclist when he was struck by an automobile declared, 'Defendant also contends that since the plaintiff apparently did not observe the automobile until it was in the center of the street and moving, plaintiff was chargeable with contributory negligence as a matter of law. But 'before it can be held as a matter of law that contributory negligence exists, the evidence must point unerringly to that conclusion.' (Balthrop v. Atchison, T. & S. F. Ry. Co., 167 Cal.App.2d 437, 441, 334 P.2d 1041, 1043.) Furthermore, plaintiff was a minor, and 'in determining whether a minor has been guilty of contributory negligence as a matter of law, a much more lenient rule in favor of the minor is applied than applies to adults.' (Citing Cases.)'

In Francis v. City and County of San Francisco, 44 Cal.2d 335, at pages 339-340, 282 P.2d 496, at page 499 wherein a judgment for the defendant was reversed, it is said:

'It is usually a question for the jury and not for the court whether a pedestrian has used due care in crossing the street and in making the decision that he can cross with safety. There is no rule of law that irrespective of existing circumstances a pedestrian must look 'continuously' or be arbitrarily adjudged guilty of contributory negligence. (Citing cases.)

'Neither the pedestrian nor the driver of an automobile has a superior right to the use of the street. Burgesser v. Bullock's, 190 Cal. 673, 675, 214 P. 649. Each must exercise the care required of a reasonable and prudent person under the existing circumstances. Even where a right of way is given by statute, if conditions so require it to avoid injury to others, the right of way must be yielded. No general rule may be laid down which will fit all circumstances as to the duty of care required of a pedestrian in crossing a street.'

Defendants rely largely upon two cases wherein the trier of fact was reversed and it was held on appeal that the plaintiff was contributorily negligent as a matter of law. (Meincke v. Oakland Garage, Inc., 11 Cal.2d 255, 79 P.2d 91; Leek v. Western Union Tel. Co., 20 Cal.App.2d 374, 66 P.2d 1232.) Both cases are readily distringuishable from the cases before us. In the first place, they do not involve a minor plaintiff and, as was emphasized in Ross v. San Francisco Unified School District, 120 Cal.App.2d 185, 190, 260 P.2d 663, and the two cases therein cited, a determination that a minor plaintiff was guilty of contributory negligence as a matter of law is rarely justified.

It also should be noted that in the Meincke case the pedestrian was 'jaywalking' across the middle of a highway at 1:00 a. m., and in the Leek case the pedestrian was stepping onto a street heavy with traffic while the 'go' signal was on for vehicles. Both of these cases have been distinguished in subsequent cases.

Defendants' second contention is the trial court erred in striking defendants' interrogatories.

The facts relevant to this contention as they occurred are as follows: Defendants took the depositions of plaintiff on November 11, 1958, and of Marvin Thomas Irving, a companion of plaintiff, on January 15, 1959. The case came on for pretrial on October 19, 1959, at which time the parties executed a joint pretrial statement which was incorporated by reference into the pretrial order. Among other things, the joint pretrial statement represented 'all discovery proceedings have been completed.'

Subsequently, plaintiff moved for a modification of the pretrial order to amend the complaint to show the prayer for general damages as $50,000 instead of the original $20,000. Defendants opposed the motion but moved in the alternative that defendants be permitted 'to engage in such further discovery as is necessary to ascertain the truth or falsity of plaintiff's claims.' Both motions were granted by the pretrial judge on February 15 and the trial date was set for April 5, 1960.

Defendants thereafter served plaintiff with 55 written interrogatories on or about February 19, 1960. Plaintiff served and filed a notice of hearing of objections to interrogatories supported by affidavit on or about March 16, 1960. There was no extension of time, by stipulation or otherwise, to answer or object to interrogatories. The department of the trial court hearing discovery matters, upon hearing the objections, ruled in favor of plaintiff using the following language: 'Objections sustained and it is ordered that ...