Zamucen v. Crocker

• Citation: 149 Cal.App.2d 312,308 P.2d 384
• Parties: Paul ZAMUCEN, a Minor, by his Guardian ad litem, Ampara Zamucen, Diane Zamucen, a Minor, by her Guardian ad litem, Ampara Zamucen, and Ampara Zamucen, and Mary Zamucen, Plaintiffs and Appellants, v. William L. CROCKER, Jr., Black & White Company, a corporation, Red & Blue Company, a partnership, First Doe, Second Doe, Third Doe, Fourth Doe and Fifth Doe, Defendants and Respondents. Civ. 17008.
• Decision Date: 20 March 1957
• Court: California Court of Appeals Court of Appeals

Page 384

308 P.2d 384

149 Cal.App.2d 312

Paul ZAMUCEN, a Minor, by his Guardian ad litem, Ampara Zamucen, Diane Zamucen, a Minor, by her Guardian ad litem, Ampara Zamucen, and Ampara Zamucen, and Mary Zamucen, Plaintiffs and Appellants, v. William L. CROCKER, Jr., Black & White Company, a corporation, Red & Blue Company, a partnership, First Doe, Second Doe, Third Doe, Fourth Doe and Fifth Doe, Defendants and Respondents.

Civ. 17008.

District Court of Appeal, First District, Division 2, California.

March 20, 1957.

Barbagelata, Zief & Carmazzi, Arthur C. Zief, Rinaldo A. Carmazzi, San Francisco, for appellants.

Hoey, Hoey, Hall & Conti, Francis Hoey, Martinez, for respondent William L. Crocker, Jr.

DOOLING, Acting Presiding Justice.

Plaintiffs appeal from an adverse judgment pursuant to a jury verdict in an action to recover for personal injuries.

This action arose out of an automobile collision at the intersection of San Pablo Avenue and Wall Street in the City of El Cerrito on Saturday, September 12, 1953 at about 11:45 p. m. At this point San Pablo Avenue is a four-lane highway, with two northerly and two southerly lanes of traffic divided by a concrete island. Appellants Paul, Diane, Ampara and Mary Zamucen were passengers in a car being driven by Nicholas Zamucen. The driver of the car is the father of Paul and Diane who are minors, the husband of Ampara, and the son of Mary Zamucen. He is not a party to the action. At the time of the accident he was driving the Zamucen automobile in a southerly direction on San Pablo Avenue. He collided with the car of respondent William L. Crocker, Jr., as it turned left from San Pablo Avenue into Wall Street.

Respondent Crocker testified that at about 8 p. m. on the evening of the accident he and a friend, one Edith Dausch who is now his wife, went to a restaurant where they had dinner. After dinner respondent and his companion went across the street from the restaurant to a cocktail lounge and bar where respondent had about four bourbon and soda drinks. After about an hour and a half respondent and his companion left this cocktail lounge and drove to a moving picture theater on San Pablo Avenue where they had previously arranged to pick up Mrs. Dausch's son. This was about 11:20 p. m. They parked in front of the theater and talked to the boy for a few minutes and then decided to go to Della's Drive In on San Pablo Avenue to get something to eat. This drive-in is located at the southwest corner of San Pablo Avenue and Wall Street and is approximately eight blocks north of the theater.

Respondent estimated his speed to be about twenty or twenty-five miles per hour as he drove north on San Pablo Avenue toward the drive-in. When he was about 100 feet from Wall Street he slowed down to approximately fifteen miles per hour and continued slowing down as he approached the intersection. The electrically controlled traffic signal was green as he approached Wall Street. Respondent signaled his intention to turn left and then turned into Wall Street. He indicated his intent to turn with a hand signal and with the automobile turn lights. When respondent was about 40 or 50 feet from the intersection he saw the Zamucen car about a half a block down the street coming from the opposite direction. He saw it again just before he made his turn. The next time he saw the car was at the time of impact. The Zamucen car was in the right-hand lane of the highway at that time.

The driver of the Zamucen car testified that prior to the accident he was proceeding in a southerly direction on San Pablo Avenue in the right hand lane at a speed of about 35 miles per hour. His speed was about 30 miles per hour when he was about one or two car lengths from the beginning of the intersection. At this time respondent suddenly made a left turn toward him. He applied his brakes, skidded and collided with respondent's car. His speed at the time of impact was about 18-20 miles per hour. He testified that he smelled alcohol on respondent's breath when he talked with him after the collision and that he noted beer cans and an odor of alcohol in the back of respondent's car. He also stated that respondent told him that he was making a U-turn into Della's restaurant just prior to the collision. Respondent denied this.

A witness to the accident estimated the speed of the Zamucen car at about 40-50 miles per hour at the time of the collision. He admitted that this estimate was based on the squealing of tires heard by him and the condition of the cars after the collision. He also testified that he was within two feet of respondent immediately after the accident and that he did not smell any liquor on his breath.

Appellants' first contention is that the trial court committed prejudicial error in refusing a proper instruction on the legal effect of driving a vehicle while intoxicated.

The trial judge after reading certain applicable provisions of the Vehicle Code instructed the jury:

'Conduct which is in violation of any of the Vehicle Code sections just read to you constitutes negligence per se. This means that if the evidence supports a finding, and you do find, that a person did so conduct himself, it requires a presumption that he was negligent. However, such presumption is not conclusive. It may be overcome by other evidence showing that under all the circumstances surrounding the event, the conduct in question was excusable justifiable and such as might have been expected from a person of ordinary prudence * * *.'

Immediately following this instruction the court gave the instructions on intoxication requested by appellants, BAJI Nos. 152 (1950 Supp.) and 153 (1950 Supp. Pocket Parts), but omitted therefrom the first sentence reading:

'A person who, while under the influence of intoxicating liquor, drives a vehicle upon a public street or highway is guilty of negligence as a matter of law.'

The instructions actually given on the subject of intoxication, after striking the above sentence therefrom, read as follows:

'Whether or not a person involved in an accident was then intoxicated is a proper question for the jury to consider in determining his conduct and whether or not he was negligent. However, intoxication is no excuse for failure to act as a reasonably prudent person would act. An intoxicated person is held to the same standard of care as a sober person.

'The taking of one or more drinks of alcoholic liquor is not of itself illegal and does not necessarily constitute negligence. The circumstances and the effect must be considered; and whether or not a person was intoxicated at a certain time is a question of fact for the jury to decide.

'A person is under the influence of intoxicating liquor when, as a result of drinking thereof, his nervous system, brain or muscle is so affected as to impair to an appreciable degree his ability to operate the vehicle in a manner like that of an ordinarily prudent person in full possession of his faculties, using reasonable care, and under like conditions.'

The effect of these instructions, particularly in view of the fact that immediately preceding them was an instruction that certain other conduct in contravention of...