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District Court of Appeal, Fourth District, California.

WATKINS et al. v. NUTTING et al.

Civ. 2532

Decided: July 10, 1940

Ray W. Hays, of Fresno, for appellants Franklin P. Nutting and American Vineyard & Investment Co. Ralph Robinson and Clyde E. Cate, both of Fresno, for appellants Mildred Westra Ingalls and Mahlon Wilson Watkins. John D. Chinello and Rae B. Carter, both of Fresno, for respondents.

We have here two appeals. One is by Franklin P. Nutting and the American Vineyard and Investment Company from a judgment against them in the sum of $20,000 damages caused by the death of Henry Cooper Pitney Watkins, who was struck by an automobile driven by Nutting. The other is by Mildred Westra Ingalls and Mahlon Wilson Watkins from an order made after judgment.

We will first consider the appeal from the judgment. In this portion of the opinion, when the term “appellants” is used, it will refer to Franklin P. Nutting and the American Vineyard and Investment Company. These appellants maintain that the evidence is insufficient to support the judgment for two reasons: (1) That there is no evidence of any negligence on the part of Nutting; (2) that the evidence shows Watkins guilty of contributory negligence as a matter of law. A consideration of these questions requires a brief summary of the evidence.

The accident happened on Highway 99, south of the city of Fresno and about one-quarter of a mile south of the Santa Fe overpass and opposite a place of business known as La Boheme Cafe. It occurred at about four o'clock in the afternoon of March 7, 1938. It was raining, the roadway was wet and the visibility was only fair. The highway runs northwesterly and southeasterly.

The roadway over the overpass has four marked traffic lanes. South of the overpass it has three marked traffic lanes, each ten feet wide. There is an oiled shoulder nine feet in width on each side of the pavement. The La Boheme Cafe is about seventy-one feet westerly from the pavement.

Watkins was the driver of a truck, from which he delivered beer to the cafe. Shortly before the accident, after parking his truck, which was headed northerly, on the easterly side of the highway, he crossed the highway and entered the cafe. Later he left the cafe, and in recrossing the highway to return to his truck, was struck by the automobile driven by Nutting and killed.

There is little conflict in the evidence. There was no pedestrian crossing nor intersection at or near the scene of the accident. Besides the beer truck there were five other motor vehicles on the highway, four going southerly, the fifth coming northerly. Nutting in a Packard sedan, Joe Pinto in a Nash sedan, Rondy Evans in a Chevrolet sedan, besides a large Mohawk gasoline truck, were all traveling southerly on Highway 99. Sam Ragan, driving an automobile in the easterly traffic lane, was approaching from the south and was between one and two hundred yards southerly from the point of collision when Watkins was struck.

In the record the description of these vehicles starts with Joe Pinto driving his automobile over the overpass in the westerly traffic lane at a speed of between forty and forty-five miles per hour. The Mohawk gasoline truck passed him, on the overpass, and returned to the westerly traffic lane. Nutting next passed Pinto, on his left, traveling at about fifty miles per hour, and after traversing the overpass, passed the Mohawk gasoline truck on its left. He remained in the center traffic lane of the three-lane highway in order to pass the Rondy Evans automobile. Joe Pinto then drove into the center traffic lane to pass the Mohawk gasoline truck. He placed this truck in the right traffic lane about fifty yards ahead of him, Nutting in the center traffic lane about seventy-five or one hundred yards ahead of him, and the Rondy Evans Chevrolet in the right traffic lane thirty-five yards ahead of the truck. He admitted that these distances were mere estimates and the testimony of other witnesses proved them to be inaccurate. No other witness mentioned seeing the Mohawk gasoline truck and there is no other evidence concerning it.

Fred Murphy, a passenger in the Rondy Evans Chevrolet, testified that Watkins left the La Boheme Cafe and proceeded at a rapid walk towards the highway; that he thought Watkins was going to walk into the right side of the Chevrolet; that Watkins hesitated before stepping onto the pavement to let the Chevrolet pass; that Watkins looked to the south; that he proceeded onto the highway but was obscured from view for the width of the car while passing back of it; that he looked back and saw Watkins near the left rear of the Chevrolet still walking easterly; that the Nutting car was between one hundred fifty and two hundred feet northerly in the center lane, probably nearer the latter distance. Murphy described subsequent events as follows:

“And Mr. Watkins started across the highway and he looked north one time and he seen this car, must have seen it, and just hesitated for a second, and then started in a fast walk. And just as—

“Q. Where was he when he hesitated? A. At the first—well, he just stepped into the center lane.

“Q. In other words, he just stepped into the center lane when he hesitated? A. Yes. And then he started—

“Q. Then he continued at a fast walk? A. Yes.

“Q. All right. A. And just as he reached the east lane or about the white line this car struck him.

“Q. And what part of the car? A. Well, it was the left bumper and fender struck him, threw him up in the air quite a little ways, and he fell. I was the first man to him, I think. I am sure I was.”

Murphy's evidence was corroborated in many respects by others in the Chevrolet.

Nutting testified that after leaving the overpass he was driving southerly at a speed of between forty and forty-five miles an hour; that he thought he was driving in the right traffic lane until he turned into the center lane to pass the Rondy Evans Chevrolet; that he had no memory of seeing or passing the Joe Pinto Nash sedan nor the Mohawk gasoline truck; that he first saw Watkins when Watkins was near the westerly line of the center traffic lane and about two car lengths, thirty-four feet, distant from him; that he sounded his horn, applied his brakes, and swerved to his left; that Watkins proceeded easterly and when on or near the easterly boundary of the center traffic lane he either stopped, or stopped and stepped back; that he turned his car to his right but that the left end of his front bumper hit Watkins; that he stopped his car within about twenty feet; that at the time of the impact his automobile was traveling about fifteen miles per hour; that the accident happened in about one-half a second after he first saw Watkins.

Sam Ragan saw the actual collision and corroborated Nutting's evidence as to the movements of Nutting's car immediately before and at the time of the accident.

Appellants argue that these facts do not disclose any negligence on the part of Nutting. They urge that he was driving at a lawful rate of speed at the place on the highway which the law assigned to him when passing another vehicle. They also urge that as soon as he became aware of Watkins' presence on the highway he did everything humanly possible to avoid the collision. We may concede the soundness of this argument under the facts which disclose the danger of the situation and that a collision was imminent if Watkins proceeded on his course. Under such circumstances the law excuses failure to follow the best possible course if the vehicle driver did those things which a reasonably prudent person would have done under similar circumstances.

However, these concessions do not settle the question of his possible negligence. The law requires that a driver shall always maintain a vigilant watch for other persons and vehicles using the highway. Under the facts disclosed the jury might have concluded that Nutting failed to perform this duty. For a time prior to the accident he seemed to be in a condition of mental abstraction and oblivion as to his conduct and surroundings. He had no recollection of driving in the center lane until he was attempting to pass the Rondy Evans Chevrolet, and mistakenly thought he had been driving in the westerly traffic lane. He had no recollection of the Joe Pinto Nash sedan nor of the large Mohawk gasoline truck being on the highway, and did not know that he had driven in the center traffic lane for a considerable distance nor that he had passed these vehicles. He did not see Watkins until he was within about thirty-four feet of him, although the passengers in the Chevrolet saw the Nutting automobile between one hundred fifty and two hundred feet distant when Watkins had passed the rear of the Chevrolet. From these facts the jury could draw the inference that Nutting should have seen Watkins walking across the highway when at least one hundred fifty feet northerly from the point of impact. Had he seen Watkins at that distance, Nutting could have avoided the collision by stopping his car, if necessary. It is evident from his testimony that he did stop it within about fifty-four feet after he actually saw Watkins. This evidence supports the inference drawn by the jury that Nutting was negligent in not seeing those objects ahead of him which were within the range of his vision, had he looked.

We have a much more difficult problem in considering the implied finding of the jury which absolved Watkins from the charge of contributory negligence. It seems to us there is a preponderance of evidence showing he was in fact guilty of contributory negligence.

It should be unnecessary to call attention to the rule that the weight and sufficiency of the evidence is addressed to the jury in the first instance. It is equally true that on the hearing of a motion for new trial, based on insufficiency of the evidence to support the judgment, the trial judge sits as a thirteenth juror. It is then his duty to judge the weight and sufficiency of the evidence and to draw his own conclusions therefrom. In so doing he may disregard the findings of the jury. Moyer v. Dresch, 2 Cal.App.2d 655, 38 P.2d 849; Clippinger v. Reiss, 17 Cal.App.2d 604, 62 P.2d 418; Fisher v. Zimmerman, 23 Cal.App.2d 696, 73 P.2d 1243; Sassano v. Roullard, 27 Cal.App.2d 372, 81 P.2d 213. In Hunt v. United Bank & Trust Company, 210 Cal. 108, at page 118, 291 P. 184, 188, the Supreme Court said: “If, in the opinion of the court, the evidence is unreliable, it is its duty to grant a new trial, and it may grant such a trial even where there is substantial evidence to sustain the verdict, if it believes that the evidence preponderates against the verdict.”

The situation in the appellate court is entirely different. We cannot weigh the evidence nor judge its preponderance. It is only when there is no substantial evidence nor reasonable inference to be drawn from it that will support the verdict and judgment and the order denying the motion for new trial that we can interfere.

Under the circumstances before us subdivision (a) of section 562 of the Vehicle Code, St.1935, p. 93 et seq., requires pedestrians crossing the roadway to “yield the right of way to all vehicles upon the roadway”. Section 87 of the same code defines “Right of Way” as “the privilege of the immediate use of the highway”. Subdivision (b) of section 562 of the Vehicle Code provides that: “The provisions of this section shall not relieve the driver of a vehicle from the duty to exercise due care for the safety of any pedestrian upon a roadway.” Because of this last provision it is apparent that the right of the automobile driver to claim his right of way over a pedestrian crossing a highway, other than at an intersection or in a marked cross-walk, is not absolute. By the same token it is equally true that a pedestrian is not absolutely prohibited from so crossing the highway.

In Brannock v. Bromley, 30 Cal.App.2d 516, 86 P.2d 1062, 1067, it was said: “The duty of a pedestrian to ‘yield’ the right of way while crossing a street other than a regular crosswalk, as imposed by section 562 of the Vehicle Code, St.1935, p. 188, may call for a higher degree of care upon the part of such pedestrian than would be applied to one crossing at a regular crosswalk, but the question as to whether or not such care was exercised in a given case is one for the jury, unless he is so careless that it can be said he is negligent as a matter of law.” In Varner v. Skov, 20 Cal.App.2d 232, 67 P.2d 123, 125, it was said: “Several of the points thus raised are based upon the contention that under section 1311/212 (c) [Sec. 562, Vehicle Code] of the California Vehicle Act the deceased was under the positive duty of yielding the right of way to the appellant and that that section necessarily prevents a recovery in this action. This contention is without merit *.”

It must be remembered that this is an action for damages resulting from the death of Watkins and that no witness observed his movements from the time he hesitated at the edge of the pavement to let the Rondy Evans car pass until he again came into view back of the left rear corner of that car. Under such circumstances it must be presumed that, during such time, he used ordinary care for his own safety. Sec. 1963, subd. 4, Code Civ.Proc.; Geisler v. Rugh, 19 Cal.App.2d 738, 66 P.2d 671. It could be presumed that he looked to the north for approaching traffic and thus took some precautions for his safety before leaving a position of safety for one of danger. Under such circumstances the questions of negligence and of contributory negligence are of fact for the jury and not of law for the courts. White v. Davis, 103 Cal.App. 531, 284 P. 1086; Varner v. Skov, supra. It follows that we cannot hold Watkins guilty of contributory negligence as a matter of law.

At the request of plaintiffs the trial judge gave the following instruction: “Every person has a right to presume that every other person will perform his duty and obey the law, and in the absence of reasonable ground to think otherwise it is not negligence to assume that he is not exposed to danger by such other person provided he, himself, uses reasonable care to observe the conduct of such other person so far as such conduct may affect his own safety at the time.”

This instruction omits the important element of Watkins' freedom from negligence. The giving of a quite similar instruction was held to be reversible error in the case of McPherson v. Walling, 58 Cal.App. 563, 209 P. 209. It is not sufficient that Watkins observe the conduct of other persons. After so observing, he must exercise reasonable care for his own safety.

The trial court also gave the following instruction at the request of plaintiffs: “In this regard you are instructed that a pedestrian has a right to cross a public street or highway between crossings, and it cannot be said that a person is guilty of contributory negligence merely because he attempts to cross the street when an automobile is approaching. A pedestrian crossing a public street or highway at other than a marked cross-walk has a right to expect and to assume that those operating automobiles upon a public street will operate them in the manner and at the speed customary, and as required by law, at the particular place.”

This instruction contains the same vice as the other, for it is only the one who is himself not negligent who can rely on the presumption that another will exercise due care. See, 10 Cal.Jur. sec. 35, page 596, and cases cited; 8 10–Year Supp., page 339, and cases cited. Any other rule would destroy the doctrine of contributory negligence. McPherson v. Walling, supra; White v. Davis, supra.

In Isham v. Trimble, 5 Cal.App.2d 648, 43 P.2d 581, 583, the court said: “ ‘A motorist must at all times use due care to avoid colliding with another; he must be ever alert and watchful, so as not to place himself in danger, and, while he may assume that others will exercise due care, he cannot for that reason omit any of the care which the law demands of him.’ Donat v. Dillon, 192 Cal. 426, 221 P. 193, 194; Barton v. Studebaker Corp. of America, 46 Cal.App. 707, 189 P. 1025; Meyers v. Bradford, 54 Cal.App. 157, 201 P. 471. ‘One who is himself not negligent is entitled to rely upon the presumption that others will exercise due care, so that it is not negligence to fail to anticipate danger which can come only from a violation of law or duty upon the part of another. * But reliance upon this presumption does not excuse one who is himself negligent.’ Carroll v. Central Counties Gas Co., 74 Cal.App. 303, 240 P. 53, 55; see, also, Holahan v. McGrew, 111 Cal.App. 443, 295 P. 1059.”

The above-quoted instructions, and another with the same vice, bore on the important question of the contributory negligence of Watkins. To our minds this is the most important issue in this case. Where, as here, the preponderance of the evidence strongly points towards the contributory negligence of Watkins, it cannot be held that the erroneous instructions did not result in prejudice to appellants. In fact, they may very well have influenced the jurors by causing them to conclude that Watkins could not have been guilty of contributory negligence in going into the roadway as he did. Under the facts of this case it should be tried again with the jury legally and properly instructed on all questions presented.

We will now consider the appeal of Mildred Westra Ingalls and Mahlon Wilson Watkins. In this portion of the opinion we will also use the term “appellants” when referring to these appealing defendants. They were the children of Watkins but Irene Watkins was not their mother. Both were of legal age when this action was filed. They were married and were not living with their father. The complaint alleged their relationship to Watkins and further alleged that they were joined as defendants because they refused to join as plaintiffs. Mahlon Wilson Watkins was personally served with process in Fresno county on October 13, 1938, and Mrs. Ingalls was served in Kern county on October 15, 1938. Their defaults were entered on order of the trial court on August 23, 1939.

The judgment in favor of plaintiffs in the sum of $20,000 was entered on September 14, 1939. On October 20, 1939, these appellants filed their petition to have the trial judge determine their pecuniary loss and allot to them a portion of the damages recovered, or in the alternative, that the pending motion for new trial be granted. This petition was supported by affidavits. On October 26, 1939, plaintiffs filed a notice of motion to strike the petition and affidavits from the record. On October 27, 1939, these appellants filed a notice of motion to amend the judgment by adding their names to those of plaintiffs. On November 2, 1939, plaintiffs filed a notice of motion to strike out the notice of motion and a supporting affidavit. Both motions to strike were granted. This appeal is from that order.

As the judgment is to be reversed this appeal largely becomes moot. Before another trial these appellants may take such steps to protect any rights they may have as they may be advised are proper. They should first endeavor to set aside their defaults.

These appellants have presented what is denominated a “Supplemental Clerk's Transcript on Appeal” as the only record on their appeal. It bears only the certificate of the county clerk. This record is insufficient to allow us to consider the questions presented. Stern & Goodman Inv. Co. v. Danziger, 206 Cal. 456, 274 P. 748; Clark v. McCain, 107 Cal.App. 668, 290 P. 901; Guyot v. Cassab, 118 Cal.App. 742, 5 P.2d 912; Salinas v. Riverside Finance Co., 126 Cal.App. 675, 14 P.2d 1025; Mason v. Coalinga U.H.S. Dist., 31 Cal.App.2d 317, 87 P.2d 921; Clark v. Janss, Cal.App., 102 P.2d 768; Kwon v. Kwon, Cal.App., 102 P.2d 808.

The judgment is reversed. The appeal of Mildred Westra Ingalls and Mahlon Wilson Watkins from the order is dismissed.

MARKS, Justice.

We concur: BARNARD, P.J.; GRIFFIN, J.