CLINKSCALES ET AL v. CARVER

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District Court of Appeal, Fourth District, California.

CLINKSCALES ET AL. v. CARVER.

Civ. 2813.

Decided: June 12, 1942

Hickcox & Provence and Ross T. Hickcox, all of El Centro, for appellant. Syril S. Tipton and John J. Ford, both of Los Angeles, for respondents.

This is an action for damages arising out of an automobile collision which occurred at the intersection of Highline road and Oat Canal road in Imperial County. Highline road runs north and south and Oat Canal road runs east and west.

On the morning of May 20, 1937, the defendant was proceeding north on Highline road and shortly after he entered this intersection his car collided with one being driven west on Oat Canal road by Richard Clinkscales, the husband and father of the respective plaintiffs. It appears from the evidence that there was a stop sign on Highline road at its intersection with Oat Canal road; that the defendant was familiar with this sign but did not make a stop there on this occasion; and that although he looked in both directions he did not see the other car coming. There is also evidence that Clinkscales' car was on the southerly or his left–hand side of Oat Canal road at the time the collision occurred. Clinkscales died as a result of the collision. A jury returned a verdict in favor of the plaintiffs, and the defendant has appealed from the judgment.

The main questions here raised relate to whether the boulevard stop sign was legally placed on Highline road at this intersection, and the court's instructions in connection therewith. This stop sign was placed at this point sometime in 1936 by a road foreman who had been given permission to do so by the supervisor for that district. At that time a contracting firm was hauling gravel from a pit located on the Oat Canal road. This road foreman testified “I put it there in order to give the gravel trucks the right of way.”

The respondent contends that the erection of this stop sign had been authorized by the board of supervisors of Imperial County. In this regard, it appears that on January 4, 1927, the board of supervisors passed a “resolution” which reads:

“It is hereby resolved, found and ordered that the general safety of the public and the proper and reasonable regulation and control of traffic on the public roads and highways in this county and outside of incorporated cities and towns require the establishment of ‘boulevard stops' at all roads intersecting all county and state highways in Imperial County outside of incorporated cities and towns, and such ‘Boulevard stops' are hereby established at said intersections as provided and authorized by Ordinance No. 82 of this County.” Ordinance No. 82, therein referred to, had been passed on July 10, 1926. Section 1 thereof provided for the establishment of “boulevard stops” at such places or points on the public highways of the county “as shall be designated by this board.” Section 2 provided that such boulevard stops should be at the intersections “of roads or highways with boulevard or other main traveled roads or highways or at such other place or places where the general safety of the public * * * may require.” The court admitted the resolution passed on January 4, 1927, into evidence but refused to admit into evidence Ordinance No. 82 for the reason that this ordinance had not been properly published.

The court instructed the jury that by virtue of this resolution of the board of supervisors and the Vehicle Code, St.1935, p. 93, any person operating a motor vehicle northerly on Highline road at this intersection was required to stop before entering the intersection; that the right of way at this intersection was controlled by section 552 of the Vehicle Code, “which provides that a driver approaching an intersection protected by a boulevard stop sign shall yield the right–of–way to other vehicles”; and that if the defendant here failed to make the boulevard stop at this intersection he was guilty of negligence. The effect of these and other instructions given was to tell the jury that this stop sign was legally posted in accordance with the provisions of the Vehicle Code, that persons traveling on Oat Canal road had the right of way at this intersection, and that the appellant's admitted failure to stop at this stop sign constituted negligence as a matter of law. At the time the resolution which was admitted in evidence was passed by the board of supervisors on January 4, 1927, section 145 of the Vehicle Act, St.1923, p. 563, provided that such boulevard stops might be authorized by an “ordinance” duly adopted by the board of supervisors. While this resolution referred to Ordinance No. 82, that ordinance had not been legally adopted. Moreover, the resolution which was passed orders the establishment of boulevard stops “as provided and authorized by Ordinance No. 82.” If that ordinance were in effect it merely provides that such boulevard stops shall be established at the intersections of roads or highways with “boulevard or other main traveled roads or at such other places where the general safety * * * may require,” and that such boulevard stops shall be established at such places or points “as shall be designated by this board.” It is conceded that nothing further had been done by the board and it follows not only that Ordinance No. 82 was properly excluded from evidence, but that the resolution passed on January 4, 1927, was not sufficient to authorize the stop sign at this particular place and, so far as shown by the record, no authority for placing a stop sign at this point appears except the permission given by one supervisor. The Vehicle Code had provided for the manner in which boulevard stop signs might be authorized and erected, and the procedure provided had not been followed. It follows that there had been no official authorization for the erection of this stop sign at this point (Lindenbaum v. Barbour, 213 Cal. 277, 2 P.2d 161), and the court's instructions, to which we have referred, were erroneously given. It cannot be questioned that these instructions had a material effect upon the question of the appellant's negligence and upon the question of contributory negligence on the part of the driver of the other car. The appellant testified that he did not stop at this stop sign and the jury was not only instructed that this was negligence per se, but the assumed fact that this was a legally established stop sign may well have been a determining factor in the jury's determination of the related questions as to contributory negligence on the part of the deceased and the proximate cause of the accident.

The respondent argues that it was negligence, as a matter of fact, for the appellant to disregard this stop sign even though it had been placed there without proper authorization. Assuming that such a conclusion might have been justified, the fact remains that the action was not tried or presented to the jury upon such an issue. In effect, the court instructed the jury that the appellant was guilty of negligence as a matter of law, and there was no occasion for the jury to pass upon his negligence as a matter of fact. Under the circumstances here appearing, the errors were material and prejudicial and the action must be remanded for a new trial.

The judgment is reversed.

BARNARD, Presiding Justice.

MARKS and GRIFFIN, JJ., concurred.