CALDWELL v. RUSSELL

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

CALDWELL et al. v. RUSSELL et al.

Civ. 18085.

Decided: June 12, 1951

Stutsman, Hackett & Nagel, Fresno, Abe Levin, Hollywood, Chase, Rotchford, Downen & Drukker, Donn B. Downen, Jr., and Otto M. Kaus, all of Los Angeles, for appellants. Knight, Gitelson & Ashton, Los Angeles, and Leon Savitch, Los Angeles, of Counsel for respondent, Clifford Russell. Ray L. Chesebro, City Atty., Gilmore Tillman, Chief Asst. City Atty., for Water and Power, Gerald Luhman, Deputy City Atty., Wendell Mackay, Deputy City Atty., all of Los Angeles, for respondent, Department of Water and Power of the City of Los Angeles.

Fidelia Dunn Caldwell and Martha Sciaroni sued to recover for injuries and damages received when Mrs. Caldwell's automobile, operated by Mrs. Sciaroni, collided with the rear-end of a truck parked adjacent to the west curb of Lankershim boulevard in the city of Los Angeles. The truck was the property of respondent Department of Water and Power of the City of Los Angeles and at the time of the accident was in the custody of its employee, respondent Russell. During the pendency of the suit Mrs. Sciraroni deceased from causes unrelated to the accident and at the time of trial the administratrix of her estate, Antoinette Lloyd Sciaroni, was substituted as a party plaintiff.

Respondents denied all material allegations of their negligence and alleged contributory negligence on the part of appellants. The latter appeal from the judgment entered upon a verdict denying them relief.

Appellants concede that the record contains evidence establishing negligence on the part of Mrs. Sciaroni and that such negligence is imputed to Mrs. Caldwell. Consequently, no attack is made as to the sufficiency of the evidence but reversal is demanded on the ground that the court erred in the giving and refusing of a number of instructions.

Lankershim boulevard, a north-south highway at the point of the collision, is approximately seventy feet wide. A double white line is painted down its center. Twelve feet to the west thereof is a single white line. The highway is paved with a heavy duty asphalt from its center westerly 23 feet. The twelve feet adjacent to the curb is composed of a rock and oil pavement two inches thick, two thirds of which serves as a shoulder and four feet is constructed as a sloping curb. Thus a gutter effect or depression exists approximately four feet from the west edge of the pavement. The center 46 feet of the boulevard is its main traveled portion.

At the time of the accident, Russell was parked on the west side of Lankershim boulevard with his right wheels within one foot of the extreme edge of the highway and his left wheels approximately a foot or two east of the flow line of the gutter. He had just reentered the cab of his truck after checking supplies in its rear when the truck was struck by the Caldwell vehicle.

Mrs. Caldwell testified that her vehicle was proceeding southerly with Mrs. Sciaroni at the wheel in the center lane on the west side of the roadway. Before reaching respondents' truck, a black sedan passed them on the left, crowded them over, cut into their lane and sped on without touching the Caldwell car. Mrs. Sciaroni applied the brakes, swerved to the right, and collided with the rear of the truck.

Appellants' first ground for reversal is that the court erred in refusing to instruct the jury specifically that Mrs. Sciaroni was entitled to the presumption that she had exercised due care. The fallacy of such contention is manifest to him who reads the instruction given, to wit: ‘At the outset of this trial, each party was entitled to the presumptions of law that every person takes ordinary care of his own concerns and that he obeys the law. These presumptions are a form of prima facie evidence and will support findings in accordance therewith, in the absence of evidence to the contrary. When there is other evidence that conflicts with such a presumption, it is the jury's duty to weigh that evidence against the presumption (and any evidence that may support the presumption), to determine which, if either, preponderates. Such deliberations, of course, shall be related to, and in accordance with, my instructions on the burden of proof.’

Appellants argue that Mrs. Sciaroni was not a ‘party’ to the suit and therefore was not benefited by this instruction. Such contention would lead to error. Although Mrs. Sciaroni was not technically a party to the action after her decease, nevertheless her administratrix has no personal interest in the action and appears merely in a representative capacity. Code Civ.Proc. § 385; Campbell v. West, 93 Cal. 653, 657, 29 P. 219, 645. It would be an overly strict and unreasonable interpretation of the instruction to hold that it did not extend the benefit of the presumption of due care to the deceased. The jury could not reasonably have considered otherwise than that decedent was a ‘party’ within the meaning of the court's instruction. The pleadings and the evidence show that she was a party involved in the accident. The jury was instructed that she was driving the Caldwell car, that she had subsequently died, and that her personal representative was entitled only to such special damages as were incurred for hospitalization and treatment of her injuries.

However, the giving of the instruction was erroneous inasmuch as it also gave respondent Russell the benefit of this presumption of due care. Where a party has testified as to his conduct in, and of the events leading up to, an accident in which he was an actor, he is not entitled to the presumption in his favor, but the jury must rely strictly upon such testimony as proof of his freedom from negligence. Speck v. Sarver, 20 Cal.2d 585, 587–588, 128 P.2d 16. From the mere announcement of the doctrine, it is not to be inferred that the error in giving the instruction is prejudicial. Numerous decisions have recognized error in such instruction, yet their authors have declined to recognize the necessity for a reversal of the judgment. Speck v. Sarver, supra; Tuttle v. Crawford, 8 Cal.2d 126, 133, 63 P.2d 1128; Rogers v. Interstate Transit Co., 212 Cal. 36, 39, 297 P. 884. Considering all the circumstances of the case, it is not apparent that either appellant was prejudiced by the instruction. It is itself qualified by the phrase, ‘in the absence of evidence to the contrary.’ Thus the jury was free to weigh and consider the conflicting evidence. Furthermore, the jury was fully and properly instructed on all matters pertaining to the possible negligence of both decedent and respondent Russell. Contributory negligence, ordinary care and proximate cause were all defined in the instructions. Such circumstances are similar to those in Speck v. Sarver.

Appellants urge the applicability of the decision in Cole v. Ridings, 95 Cal.App.2d 136, 212 P.2d 597, where this very instruction was deemed reversible error. That is true, but the opinion therein reveals a sharp conflict on the issue of contributory negligence. Such error was also indicated to be prejudicial solely by virtue of other erroneous instructions also given.

Appellants contend that the court erred in refusing the following instruction: ‘You are instructed that if you find that the defendants in this action stopped or otherwise parked their vehicle at a point in the highway other than a business or residence district, and that such roadway was not bounded by adjacent curbs, then a prima facie case of negligence has been established against the defendants. There is no duty upon the part of the plaintiff to prove that it was practicable for the defendants to park some other place than on the paved or improved or main travelled portion of the highway, but on the contrary, once the fact of having so parked has been established, it is encumbent upon defendants to prove that it was not practicable to park or stop at any other place.’

The prejudice asserted is that by virtue of the court's failure to give this instruction, the court in effect instructed the jury that the burden of proving the practicability of Russell's parking elsewhere was on the appellants when the authorities are to the contrary. Thomson v. Bayless, 24 Cal.2d 543, 546, 150 P.2d 413. However, the jury was fully and correctly instructed1 on the substance of section 582 of the Vehicle Code which was the basis of appellants' requested instruction. Moreover, appellants assumed the burden of proving and did prove that it was practicable for Russell to park elsewhere. No evidence to the contrary was introduced and in fact Russell himself virtually admitted he stopped at that location only for his own convenience. It follows that no prejudicial error has been demonstrated.

Also, there was no error in the giving of an instruction that pursuant to the Vehicle Code section 526 a vehicle shall be driven within a single lane whenever a roadway has been divided into three or more clearly marked lanes of traffic. Contrary to appellants' argument that no evidence supports the giving of such an instruction, the record reveals testimony of appellant Caldwell that the highwy consisted of six traffic lanes, three each way. The evidence established that such lanes were ‘clearly marked’ either by painted lines or differences in the texture and composition of the highway surface. In any case, no prejudice is shown.

Neither is there error in the giving of an instruction ‘that the terms ‘paved’ or ‘improved portion of the highway’ as used in section 582 of the Vehicle Code, at the time of the accident, mean that portion of the highway ordinarily used for vehicular travel.' It was held in Ketchum v. Pattee, 37 Cal.App.2d 122, 127, 98 P.2d 1051, that ‘improved’ refers to the usually traveled roadway, and the opinion on this point was in no sense dictum as contended by appellants.

Appellants urge as error the court's instruction in regard to what constituted a curb. The instruction given was as follows: ‘You are instructed that the common meaning of the word ‘curb’ as applied to a state highway is a stone or row of stones or similar construction of concrete, wood or other material along the margin of the highway set aside for vehicular use, and a restraint and protection to the adjoining sidewalk space.'

It is appellants' contention that a curb cannot be constructed of macadam and an instruction to this effect was offered. Their theory is that this sloping four feet, rising eight inches in this distance, could not, as a matter of law, be considered curbing. However, no good reason appears why it could not be a curb within the meaning of the Vehicle Code. The witness Harding, a civil engineer in charge of designing streets in Los Angeles, testified that this slope was one of a number of types of curbing used in this city. Whether a curb did exist at the point where the truck was parked was therefore properly a question of fact for the jury's determination. The instruction given was proper, curbing having been judicially defined to include wood, stone, cement or any other material. Lyman v. Town of Cicero, 222 Ill. 379, 78 N.E. 830.

Judgment affirmed.

FOOTNOTES

1.  ‘You are instructed that at the time of the accident Section 582 of the Vehicle Code of the State of California provided as follows: ‘Upon any highway outside of a business or residence district no person shall stop, park or leave standing any vehicle, whether attended or unattended, upon the paved or improved or main traveled portion of the highway when it is practicable to stop, park or so leave such vehicle off such part or portion of said highway. This section shall not apply upon a highway where the roadway is bounded by adjacent curbs.’‘You are instructed that it has been established as a matter of law that the roadway at the place of the occurrence of the accident, which is the subject of this litigation, was a highway outside of a business or residence district within the meaning of Section 582 of the Vehicle Code.‘You are instructed that the terms ‘paved’ or ‘improved portion of the highway’ as used in Section 582 of the Vehicle Code, at the time of the accident mean that portion of the highway ordinarily used for vehicular travel.‘You are instructed that in ascertaining whether or not it was practicable to park a non-disabled truck, as is involved in the present litigation, off the highway, you must consider not only the physical conditions immediately to the right of the place at which the truck was parked, but also any other possible parking space to which the vehicle might reasonably be taken within a reasonable distance.‘You are instructed that the common meaning of the word ‘curb’ as applied to a state highway is a stone or row of stones or similar construction of concrete, wood or other material along the margin of the highway set aside for vehicular use and a restraint and protection to the adjoining sidewalk space.‘You are instructed that Section 588 of the Vehicle Code of the State of California in full force and effect at the time of the occurrence of this accident insofar as it is pertinent to this action reads as follows: ‘Except as otherwise provided in this section every vehicle stopped or parked upon a roadway where there are adjacent curbs shall be so stopped or parked with the right-hand wheels of such vehicle parallel with and within eighteen inches of the right-hand curb. The above vehicle section just quoted is only applicable if you first find that the State highway at the point where the accident occurred was actually bounded by curbs within the definition of the same as given to you by the court.‘Conduct which is in violation of Section 526 or 582 or 588 of the Vehicle Code of the State of California just read to you constitutes negligence per se, that is; negligence as a matter of law. 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 (or she) 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 reasonably have been expected from a person of ordinary prudence. In this connection, you may assume that a person of ordinary prudence will reasonably endeavor to obey the law and will do so unless causes, not of his own intended making, induce him, without moral fault, to do otherwise.‘You have been instructed that conduct which was in violation of certain sections of the Motor Vehicle Code just read to you constitutes negligence per se, that 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. In this connection you are further instructed that such presumption is not conclusive; that it may be overcome by other evidence tending to show that under all the circumstances surrounding the event, the conduct in question is excusable, justifiable and such as might reasonably have been expected from a person of ordinary prudence. You should, however, be cautioned that in applying this instruction to an alleged violation of Section 582 of the Vehicle Code, namely that section covering stopping, standing or parking outside of business or residence districts, a deliberate, unlawful parking in violation of said section for reasons of personal convenience only, is not excusable or justificable.’

MOORE, Presiding Justice.

McCOMB and WILSON, JJ., concur.