Yarrow v. State

Decision Date22 January 1960
CourtCalifornia Supreme Court
Parties, 348 P.2d 687 Paul W. YARROW and Edna Yarrow, his wife, Plaintiffs and Appellants, v. STATE of California, Defendant and Respondent. S. F. 20284.

Carr, McClellan, Ingersoll & Thompson, Luther M. Carr and Richard C. Amick, Burlingame, for appellants.

Edmund G. Brown and Stanley Mosk, Attys. Gen., John E. Fourt, Deputy Atty. Gen., Robert E. Reed, Sacramento, Robert E. Carlson, Los Angeles, Ropers & Majeski, Ropers, Majeski & Kane, Redwood City, and Harold Ropers, Redwood City, for respondent.

WHITE, Justice.

This is an appeal from an order granting the defendant's motion for a new trial.

Plaintiffs, husband and wife, brought this action against the state 1 claiming to have suffered personal injuries and property damage by reason of the negligent operation of motor vehicles by state employees. They relied on the provisions of SECTION 400 OF THE VEHICLE CODE* 2 as evidence of the state's consent to be sued. The state denied the allegations of the complaint and pleaded contributory negligence as an affirmative defense. In its pleadings and in successive motions at the trial for judgment on the pleadings, for nonsuit, for directed verdict and for judgment notwithstanding the verdict, the state also raised the issue of law that the provisions of section 400 of the Vehicle Code must be construed in conjunction with the provisions of section 453, subdivision (b) of that code. 3 It contended that these sections taken together indicate there is no waiver of sovereign immunity for the negligent operation of motor vehicles by state employees while they are 'actually engaged in work upon the surface of a highway,' and that inasmuch as the state employees and vehicles in question were actually engaged in work upon the surface of a highway at the time and place of the accident, this action could not be maintained. The plaintiffs took the position that the provisions of section 453, subdivision (b) of the Vehicle Code do not affect the state's waiver of immunity from suit and that at most they exempt the public employees from the penal consequences of violations of Vehicle Code rules of the road. The trial court denied each of the foregoing motions, thus holding adversely to the state on the jurisdictional issue, 4 and determining that factual issues were presented which should go to the jury.

The jury returned verdicts in favor of plaintiffs Edna and Paul Yarrow in the amounts of $13,534.38 and $772.06, respectively, and judgment was entered thereon. The state moved for a new trial on all of the statutory grounds (Code Civ.Proc. § 657) including insufficiency of the evidence and that the verdict was against law. The minute order from which this appeal is taken is herewith quoted in full:

'Plaintiffs admit that if they can recover, the recover must be under Section 400 of the Vehicle Code. 'Section 400 of the Vehicle Code waives the common law immunity of the State and Municipal bodies for damages because of negligence of public employees; but limits such waiver to damages occasioned by the operation of vehicles.

'In our opinion, Sections 400 and 453 must be read together. Section 453(b) exempts public employees and '* * * Motor Vehicles and other equipment, while actually engaged in work upon the surface of the highway, etc.' from the provisions of the Vehicle Code.

'In our opinion, the Section shows no intention by the Legislature to exempt from the provisions of the Vehicle Code not only public employees, but the public employer.

'The evidence is clear that the State employees were engaged in work upon the surface of the highway and were operating motor vehicles. Therefore plaintiffs must prove some negligence in the operation of motor vehicles not arising from a violation of a Section of the Vehicle Code, in order to recover against the defendant, State of California. In our opinion, the evidence does not show any such negligence. Plaintiffs suggest that State Employees were negligent in not waving a warning to plaintiffs, as was done to a vehicle approaching from the west, or that they were negligent in not sweeping loose dirt from the surface of the highway.

'Perhaps such omissions were acts of negligence, but we cannot see how they constitute any part of the operation of a motor vehicle, as required by Section 400.

'Motion for judgment notwithstanding the verdict is denied.

'Motion for new trial is granted upon the ground of insufficiency of the evidence to sustain or justify the verdict. Done in open court this 4 day of April, 1957.

'Edmund Scott, Judge.'

The rules on appeal from an order granting a new trial are well settled. All presumptions favor the order as against the verdict and the order will be affirmed if it may be sustained on any ground, although the reviewing court might have ruled differently in the first instance. Shaw v. Pacific Greyhound Lines, 50 Cal.2d 153, 159, 323 P.2d 391; Ballard v. Pacific Greyhound Lines, 28 Cal.2d 357, 358-359, 170 P.2d 465. Appellate review is not limited to the ground stated in the lower court's order (Kauffman v. Maier, 94 Cal. 269, 276, 29 P. 481, 18 L.R.A. 124; Lovett v. Dintzer, 131 Cal.App.2d 165, 166, 280 P.2d 58) with the exception of the ground of insufficiency of the evidence. If the order does not specify that it is granted on this ground, it must be conclusively presumed on appeal that the order was not based thereon. Code Civ.Proc. § 657.

In considering the sufficiency of the evidence on the hearing of a motion for new trial it is the exclusive province of the trial court to judge the credibility of the witnesses, to determine the probative force of testimony and to weigh the evidence, and it may draw reasonable inferences therefrom opposed to those drawn by the trier of fact at the trial. Brooks v. Metropolitan Life Ins. Co., 27 Cal.2d 305, 307, 163 P.2d 689; Green v. Soule, 145 Cal. 96, 102-103, 78 P. 337; Dasso v. Bradbury, 39 Cal.App.2d 712, 717-718, 104 P.2d 128. It is only where it can be said as a matter of law that there is no substantial evidence to support a contrary judgment that an appellate court will reverse an order granting a new trial on this ground. Richardson v. Ham, 44 Cal.2d 772, 775, 285 P.2d 269; Williams v. Field Transp. Co., 28 Cal.2d 696, 698, 171 P.2d 722; Birch v. Mahaney, 137 Cal.App.2d 584, 585-586, 290 P.2d 579; 3 Witkin, Calif.Proc. 2062. Error is no presumed and the burden is upon the plaintiffs herein to affirmatively show its presence in the record (Power v. Fairbanks, 67 Cal. 611, 614, 80 P. 1075; Scott v. Renz, 67 Cal.App.2d 428, 431, 154 P.2d 738) or a manifest and unmistakable abuse of discretion. Shaw v. Pacific Greyhound Lines, supra, 50 Cal.2d 153, 159, 323 P.2d 391; Crane v. Middleton, 123 Cal.App.2d 517, 522, 257 P.2d 32; Brinkerhoff by Nelson v. Ferguson, 107 Cal.App. 175, 176, 236 P.2d 588; Perry v. Fowler, 102 Cal.App.2d 808, 812, 229 P.2d 46.

A complete record has not been furnished by the plaintiffs on this appeal, some of the testimony and all of the instructions having been omitted. It cannot therefore be determined that there was no error of law at the trial upon which the order might have been omitted. A review of the record as furnished, however, indicates that there was a conflict in the evidence as to the negligence of the state employees and that there was some evidence of contributory negligence on the part of the plaintiffs. No abuse of discretion therefore appears in the granting of a new trial on the ground of insufficiency of the evidence.

The record shows that on September 6, 1955, the plaintiffs, with the husband driving, were proceeding westerly along a two-lane state highway about 25 miles west of Coalinga in the Priest Valley area when their car skidded and overturned, injuring both plaintiffs and damaging their vehicle. It was about 1:45 p. m. and the day was clear. The husband testified that the road was mountainous and curving with sharp hairpin turns, with an open straightaway space about a mile long just before the rise and curve in the road where the accident occurred. In this level section the plaintiffs could see the curve ahead and they noticed a red and black highway 'men and equipment working' sign, with a red flag on top. They saw no workmen or signs of highway repair at that location, but observed an unattended state highway loader truck by the warning sign. They had passed a similar sign some three-quarters of a mile east. This second sign was located some 900 to 1,200 feet east of the area where the workmen were filing and leveling the shoulder in the opposite or eastbound lane of the highway. From this straight section the road curves sharply to the right and winds through and up a cut in a hill, with left banks sufficiently high to hide vehicles in the cut from westbound travelers. The roadway is 20 feet wide with a white line down the middle and gravel shoulders five feet wide. There is a conflict in the evidence as to the speed with which the plaintiffs' car rounded the curve and entered this cut (60 or 30 mph), the distance from which the plaintiffs could and should have seen the highway crew and equipment and whether there was loose gravel or dirt on the pavement at the point where Paul Yarrow attempted to put on the brakes of his car. He testified that the bulldozer appeared to be entirely blocking his lane, as well as the opposite lane, and that he intended to try and pass on the shoulder when his car skidded. His vehicle came to rest some twenty feet short of the bulldozer. The state's evidence was that a dump truck was waiting in the opposite shoulder to dump its load while the bulldozer was backing up from leveling a prior load and preparatory to leveling the new load; that no flagman had been posted to warn travelers coming from the east because no work was being done on the travelway; that warning flags had been posted; that travelers approaching from...

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