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District Court of Appeal, Fourth District, California.


Civ. 2976.

Decided: December 05, 1942

Earl Redwine and Sarau & Thompson, all of Riverside, for appellants. Irving E. Read, of Los Angeles, for respondent.

This is an action for damages arising out of a collision between an automobile driven by the plaintiff and another owned by the County of Riverside and driven by the defendant Witbeck. The collision occurred at the intersection of U. S. Highway 395 and Orange Street. U. S. Highway 395 is a paved highway running north and south and Orange Street is a dirt road intersecting it at right angles. On the occasion in question the defendant Witbeck, who was driving north on Highway 395, attempted to turn to his left at this intersection with the intention of proceeding west on Orange Street. As he was making this turn the front end of his car was struck by the plaintiff's car, which was traveling south on Highway 395.

The defendant Witbeck testified that he was traveling from 25 to 30 miles an hour as he approached this intersection and that as he started to make the turn he slowed down to about 10 miles an hour; that when he first saw the plaintiff's car it was about 300 feet to the north of him; that as he was in the intersection and making the turn he saw that the plaintiff was not going to stop; that he thereupon stopped his car at an angle, with the left front fender extending about a foot to the west of the white center line on Highway 395; that when he came to a stop the plaintiff's car was approximately 240 feet north of him; that the plaintiff's car was traveling near the center line and as it neared the intersection it changed its course and “bore to the east” toward the center line; that his car was standing still for some seconds before the impact; that after the collision there were skid marks left by plaintiff's car for a distance of 76 feet; and that the easterly one of these skid marks started about two feet to the west of the center line and came over to less than a foot west of the center line at the point of impact. His testimony was corroborated in all material respects by another witness who had been traveling north in another car immediately behind Witbeck's car. An officer who reached the scene a few minutes after the accident testified that there were dark burnt rubber marks on the pavement for 78 feet “starting approximately 4 feet west of the center line up to a point 2 feet from the white line.”

The plaintiff testified that she was driving south on Highway 395 at from 40 to 45 miles an hour; that she first saw the defendants' car when she was about 300 feet north of this intersection; that at that time her automobile was two feet west of the white line; that the defendants' car was then about the center of the eastern portion of the paved highway and traveling slowly; that she saw the Witbeck car at all times after she first observed it; that she knew there was an intersection there; that when the Witbeck car crossed the south line of the intersection her car was about 75 feet north of the intersection; that when her car was 50 to 55 feet north of the intersection the Witbeck car made a sudden left turn; that Witbeck stopped his car with the front end of it three or four feet over the white line; that she saw Witbeck stop his car when she was about 30 feet from the intersection; that she did not turn to her right when she saw him stop his car and that she was still traveling about two feet to the west of the white line when the impact occurred; and that there was approximately seven feet between the right side of her car and the westerly edge of the pavement.

A jury returned a verdict in favor of the defendants and thereafter the court granted the plaintiff's motion for a new trial on the sole ground that “the court is of the opinion that there was error at law in giving defendants' instruction Number 28, when applied to the evidence produced at the trial.” From that order the defendants have appealed. The plaintiff also appealed from a judgment for costs entered before the motion for a new trial was granted but that appeal has been specifically abandoned. The only question here presented is whether the court committed prejudicial error in giving defendants' instruction Number 28, which reads as follows:

“You are instructed that at the time and place of the happening of this accident, it was the duty of plaintiff Alice C. Mathers to drive her automobile on the right–hand side of the highway, and as close as practicable to the right–hand edge of said highway.

“Therefore, if you should find from the evidence in this case that said plaintiff violated her said duty, then said plaintiff was guilty of negligence per se, and if you further find that such negligence, if any, on the part of said plaintiff, Alice C. Mathers, contributed proximately to the happening of said accident, then your verdict must be against said plaintiff, Alice C. Mathers, and in favor of said defendants, and each of them.”

This instruction applies the general rule set forth in section 525 of the Vehicle Code, St.1941, p. 2722. In commenting upon the similar rule as formerly found in section 122b of the Vehicle Act, St.1931, p. 2124, the court, in Arundel v. Turk, 6 Cal.App.2d 162, 44 P.2d 383, expressed the belief that that section was enacted for the benefit of motorists traveling in the same direction. The reason given for that belief was that a motorist has no right to cross over to his wrong side of the highway on the blind assumption that vehicles coming from the opposite direction will hug the edge of the highway. Statements to the effect that section 525 of the Vehicle Code or its predecessor, section 122b of the Vehicle Act, were enacted for the benefit of motorists traveling in the same direction are to be found in Polk v. Weinstein, 12 Cal.App.2d 360, 55 P.2d 588; Matsuda v. Luond, 52 Cal.App.2d 453, 126 P.2d 359; Lewis v. Western Truck Line, 44 Cal.App.2d 455, 112 P.2d 747; and Bennett v. Chandler, 52 Cal.App.2d 255, 126 P.2d 173. In the two cases last named it was held that an instruction similar to the one here in question should not have been given, but that the giving of the same was not prejudicial. While such an instruction may not have been applicable under the circumstances appearing in these cases it would seem that the general statement therein made, that the pertinent statute was enacted for the benefit of motorists traveling in the same direction, was unnecessarily broad.

The rule that a motorist should drive as close as practicable to the right–hand edge of the highway has been applied in a number of situations other than where motorists were traveling in the same direction. (1) It has been applied where motorists were traveling in opposite directions. McLellan v. Cocola, 133 Cal.App. 9, 24 P.2d 200, and Kellner v. Witte, 133 Cal.App. 231, 23 P.2d 1045. In each of these cases it was held that the question as to whether a failure to observe this rule was negligence which contributed to the accident was a question of fact for the jury. (2) It has been held to apply in cases involving collisions between automobiles and pedestrians. Kingston v. Hardt, 18 Cal.App.2d 61, 62 P.2d 1376; Skulte v. Ahern, 22 Cal.App.2d 460, 71 P.2d 340; and Casalegno v. Leonard, 40 Cal.App.2d 575, 105 P.2d 125. In Skulte v. Ahern, supra, in holding an instruction similar to that here in question to have been properly given the court said: “Here the pedestrian and the vehicle were in the same half of the street, which is the same situation which arises when two vehicles are traveling in the same direction.” [22 Cal.App.2d 460, 71 P.2d 342.] In Casalegno v. Leonard, supra, where the plaintiff was injured while crossing a highway, the giving of an instruction as to the duty to drive as close as possible to the right–hand side of the road was assigned as error. The court there said: “The evidence discloses that if the defendant minor was not driving partly on the left half of the road, he was, just prior to the impact, at least very near the middle thereof. Under such circumstances the court was justified in presenting the instruction under the provisions of section 525.” [40 Cal.App.2d 575, 105 P.2d 127.] (3) The rule has been applied in a case involving a motorist passing a parked car. Christiansen v. Hollings, 44 Cal.App.2d 332, 112 P.2d 723, 726. In that case it was argued that the deceased was guilty of contributory negligence in driving too near a parked car and that the court erred in instructing the jury that a vehicle should be driven as close as practicable to the right–hand curb. In holding the instruction proper the court said: “The section * * * applies to any person driving on the right–hand side of the street, and was passed for the benefit of the person so traveling as well as for the benefit of others rightfully on that side of the street.” (4) The rule has been applied where vehicles traveling on different streets collided at the intersection thereof. Nitta v. Haslam, 138 Cal.App. 736, 33 P.2d 678, 681. It was there argued that the plaintiff was guilty of contributory negligence in that while approaching and crossing this intersection he did not “drive as closely as practicable to the right hand edge or curb of the highway.” The court said: “The question of whether or not the violation of the provisions of this section was negligence which actually contributed to the accident is held to be a question of fact to be decided by the jury.”

From a review of the cases, as well as logically, it would seem that the applicability of the rule in question depends much more upon whether both of two vehicles involved in an accident are or may be entitled to travel over the same part of the roadway than upon whether they are both traveling in the same direction. Where a driver is turning to his left at an intersection he is entitled to use a portion of the highway within the intersection which is naturally used by vehicles proceeding in the same direction from which the turning driver came. The right of the driver to make such a turn is, of course, subject to the rights of approaching drivers who are themselves subject to certain rules, including the one here in question. Whether a driver making a turn at an intersection is entitled to proceed to his left side of the highway at a particular time is a question of fact depending upon the position and speed of approaching cars, and those factors also present questions of fact. In determining all of these questions it is proper and necessary in such a case that the jury be instructed as to the rules of law governing the conduct both of the approaching driver and the one making the turn.

In the instant case questions of fact were presented not only as to whether the appellant driver was rightfully at the point where the impact occurred, but also whether the plaintiff was doing any act which was in violation of law and whether her failure to act in the manner required by law, if any, was a proximate cause of the accident. The court not only gave the instruction complained of but, at the request of the plaintiff, gave another instruction in which the jury was told that the plaintiff was not required by law to drive on the right shoulder but was entitled to travel on the paved portion of the highway designed and ordinarily used for vehicular travel, and that if it found that she was driving on her right half of the paved portion of the highway and that the width of said paved portion was not sufficient to make it practicable for her to drive close to the right–hand edge of the highway but that it was more practicable for her to drive where she was driving, then the verdict should be in her favor on such issue. The two instructions were not conflicting. While the one complained of told the jury that it was the plaintiff's duty to drive as close as practicable to the right–hand edge of the highway the other instructed the jury that she was not compelled to drive on the shoulder and that she was entitled to drive where she did if the width of the paved portion of the highway was not sufficient to make it practicable for her to drive closer to the right–hand edge.

In our opinion, the questions of fact presented under the evidence required an instruction along the line of the one complained of. No other instructions on that subject were given and the one complained of correctly set forth the law upon that issue. This instruction, with the other one to which we have referred, fully and correctly covered the subject. It therefore appears that an error of law was not made in giving this instruction, and it follows that no valid reason appears for the granting of the motion for a new trial.

The order appealed from is reversed.

BARNARD, Presiding Justice.

MARKS and GRIFFIN, JJ., concurred.

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