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

JESSE et al. v. GIGUIERE.†

Civ. 10388.

Decided: September 15, 1937

Redman, Alexander & Bacon and Herbert Chamberlin, all of San Francisco, for appellant. Ingemar E. Hoberg, of San Francisco, for respondents.

From a judgment rendered against him for damages for injuries sustained in an automobile collision, the defendant has appealed.

He contends that the judgment is without support in the evidence for the reason that the evidence will not support a finding that any negligence of defendant proximately caused or contributed to plaintiffs' injuries. The accident occurred on the afternoon of the 9th day of June, 1935, in the city of Burlingame. Burlingame avenue runs east and west. On the north side is a polo field. From the south Channing road runs north to Burlingame avenue opposite the polo field. The intersection of those two streets is, within the meaning of the California Vehicle Act (St.1923, p. 517, as amended), an obstructed intersection. Eucalyptus trees of considerable growth stand somewhat close together along both sides of Burlingame avenue. The curbs of the sidewalks on both the southeast corner and the southwest corner of the intersection are rounded. No marker indicated the center of the intersection and, as we understand the record, no marker indicated the middle line of either Burlingame avenue or Channing road. The plaintiffs were riding as the guests of their son–in–law Sterling L. Hammack. Mrs. Hammack was also riding in the car. Mr. Hammack was driving a Studebaker sedan and was proceeding from the west toward the east along the right hand side of Burlingame avenue. The defendant and his wife were in the defendant's car, an Oldsmobile sedan, and the defendant was proceeding from the south toward the north along Channing road. The theories of the parties were distinctly different. The defendant contended that he drove north into the intersection, passed to the right of the center of the intersection, and then made a left–hand turn to go west on Burlingame avenue, and as he was about to leave the intersection the accident happened. The plaintiffs contend that Mr. Hammack was driving along the right–hand side of Burlingame avenue at a speed of from 15 to 20 miles an hour, and that when his car reached the westerly property line on Channing road the defendant's car cut the southwest corner of the intersection from 2 to 3 feet north of the rounded curb, dashed into the right–hand side of the Studebaker, and knocked it 15 to 20 feet toward the north with such violence that it was overturned. The defendant asserts the impact occurred while his automobile was still within the intersection, that his entry into the intersection was senior in time and he therefore had the right of way, and that the sole proximate cause of the accident was negligence on the part of the driver of the Studebaker. Under his theory of the case that contention would be sound. However, the plaintiffs introduced evidence from which the jury might have inferred that the defendant cut the corner of the intersection in such a manner as to strike the Studebaker under any circumstances. The diagram used at the trial and contained in the transcript, and on which the witnesses called by the plaintiffs marked the course of the Oldsmobile, discloses facts indicating that when the rear end of the Oldsmobile was entering the intersection the front end thereof was leaving the intersection, and that the collision took place west of the intersection and when the Oldsmobile had wholly cleared the intersection and was on its left–hand side of Burlingame avenue. Moreover, the markings indicate that the Oldsmobile was not at any time on the north side of the middle line of the avenue. The diagram further indicates that before the impact the Studebaker had not reached the intersection, but by the impact it was knocked to a place about one–half in and one–half without the intersection.

There was evidence that the defendant drove down Channing road in the middle thereof at a speed of from 40 to 50 miles per hour and, without giving any signal of his intention to make a left–hand turn, at a high rate of speed he so swerved around the corner as to make decided marks in the streets for a distance of 25 feet back of the place of the impact. There was evidence that the Studebaker car was proceeding at a rate of from 15 to 20 miles per hour and that the driver did not know the defendant's speed nor his intention of making the turn until the two cars were only about 60 feet apart, measuring the arc around the southwest corner of the intersection. Giving effect to the foregoing facts, we are unable to say there was no factual support to the implied finding that the acts of defendant were the proximate cause of the accident.

The defendant complains because the trial court gave two different instructions and also because it made certain modifications in one of the instructions requested by the defendant and then gave it as modified. That all three instructions were given is clear. Whether the first two were given by the court of its own motion, or on the request of the plaintiffs, or on the request of the defendant, does not appear. What modification, if any, was made in the third one does not appear. In support of the judgment, we must assume the first two instructions were given at the request of the defendant and that the modification, if any, in the third instruction was not erroneous.

It was the theory of the defendant that he drove his car north on Channing road on the right–hand side at a lawful speed, turned to the left on the right–hand side of the center of the intersection, and started to drive west on the northerly side of Burlingame avenue; and, as he did so, the driver of the Studebaker attempted to cut around on the northerly side of defendant's car and, in doing so, wrongfully passed across the path of the defendant's car. So attempting to present his theory of the case the defendant asserts he tendered several specific instructions. He complains because the trial court refused to give them. We find no prejudicial error in the refusal of the trial court. The court gave a very large number of instructions––general and specific. A careful examination of all of them and a comparison with those refused shows that the jury was fully and fairly instructed on every theory advanced by both parties to the record.

Again the defendant requested, and the trial court refused to give another instruction: “In considering whether the driver of the automobile in which Mr. and Mrs. Jesse were riding was or was not exceeding the speed limit, you have the right to consider, for such weight as you deem proper to give the evidence, the distances that his car traveled after the accident, and its movements before it came to a stop.” In so refusing the trial court did not err. It is never proper to pick out isolated portions of evidence and instruct thereon. 24 Cal.Jur., “Trial,” § 102.

By its verdict the jury awarded Mr. Jesse damages in the sum of $1,000. The defendant makes no objection. It awarded Mrs. Jesse damages in the sum of $9,000, and the defendant contends that sum is excessive. He bases that contention on the fact that the two awards are inconsistent. Perhaps so. But this court has no more authority to draw the conclusion that the award to Mrs. Jesse was too much than to draw the conclusion that the award to Mr. Jesse was too little. There was evidence that Mrs. Jesse sustained fractures of all of the transverse processes of the lumbar vertebrae, with considerable damage to the tissue and muscles. She was confined in a hospital for one month. At the time of the trial (nine months after the accident) she had recovered to a considerable extent. But she had lost thirty pounds in weight and complained of pains in, and restricted motion in her back. There was evidence such injury was permanent, that it would be necessary for her to wear a steel corset, and that she could not hereafter do her housework as she had done before the accident. Considering all of these facts, we may not, as a matter of law, say that the verdict was excessive. Kimic v. San Jose–Los Gatos, etc., Ry. Co., 156 Cal. 273, 278, 104 P. 312.

We find no prejudicial error in the record. The judgment is affirmed.


We concur: SPENCE, Acting P. J.; OGDEN, Justice pro tem.

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