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District Court of Appeal, Fourth District, California.


Civ. 1272.

Decided: April 26, 1934

Ray W. Hays and Walter Sorensen, both of Fresno, for appellant. W. M. Conley, Philip Conley, Matthew Conley and Conley, Conley & Conley, all of Fresno, for respondent.

The plaintiff was very seriously injured in an automobile collision in or near the intersection of McCall avenue and Gaither street in the city of Selma. The accident occurred at about 5 o'clock on the afternoon of July 29, 1931. On motion of the defendant the trial court instructed the jury to return a verdict in his favor. Judgment was entered upon this verdict, and this appeal followed.

McCall avenue, which has a pavement twenty feet in width in its center and is forty feet between curbs, runs north and south, and Gaither street intersects it at right angles. In both directions from the intersection, McCall avenue runs through a “residence district.” Section 28 1/2, Cal. Vehicle Act (St. 1923, p. 517, as added by St. 1929, p. 510). The intersection was an obstructed one where the driver of a vehicle approaching it did not have a clear and uninterrupted view of the traffic for a distance of two hundred feet on the intersecting street for the last one hundred feet of his approach to it. Section 113, Cal. Vehicle Act (St. 1923, p. 553, as amended by St. 1931, p. 2120). There were no “turning markers” at the intersection.

Just prior to the accident the defendant was driving his automobile, a coach with a two–wheel trailer attached, northerly on his right–hand side of McCall avenue at a lawful rate of speed. The coach was sixteen feet in length and the trailer ten and one–half feet long. About twenty feet south of the intersection he gave the arm signal for a left turn onto Gaither street. He started his left turn as soon as he reached the south line of Gaither street and completed it without passing to the right of the center of the intersection, and then parked his vehicles on the north side of Gaither street just west of McCall avenue.

The defendant testified that when he was about forty feet south of the intersection he saw a car about three hundred feet north of Gaither street, approaching on McCall avenue. When he reached the intersection, and about the time he started his left turn, he saw that it was about one hundred fifty feet from the intersection and was being driven at a speed of forty–five or more miles an hour. This car was being driven by Melvin Pelletier. The defendant proceeded with his turn at a speed of about ten miles an hour, and heard, but did not see, the collision between the Pelletier automobile and the one in which the plaintiff was riding. The defendant did not know a car was following him.

The plaintiff was riding as a guest in an automobile driven by Sidney Jensen which was following the defendant's car north on McCall avenue. Jensen was driving at a lawful rate of speed and on his own right–hand side of the street. The plaintiff was so seriously injured in the accident that he had no recollection of it. Pelletier died the next morning. The plaintiff relied upon the testimony of Jensen for a description of the accident.

Jensen testified that, with the plaintiff riding as his guest, he was following the Lewis car at a distance of about seventy–five feet in traveling north on McCall avenue; that Lewis reduced his speed before entering the intersection and that the Jensen car was about forty feet back of the Lewis trailer when Lewis started his left turn; that Jensen's view of the west half of McCall avenue was cut off by the body of the Lewis coach; that when Lewis had made sufficient of his left turn so that the coach body had crossed the center line of McCall avenue, Jensen saw the Pelletier automobile for the first time; that it was then on the west half of McCall avenue about twenty feet north of the north line of the intersection; that at that time the rear of the Lewis trailer had not crossed to the west side of the center line of McCall avenue; that such line passed under the trailer; that Pelletier was driving “fast” and swerved his car sharply onto the east side of McCall avenue and then swerved it sharply towards the center; that Jensen swerved his car to his right until his right wheels were off the pavement; that the Pelletier automobile struck the Jensen car on its right front and the injuries to plaintiff followed.

It affirmatively appears that Pelletier drove his automobile at a rate of speed in excess of that permitted by section 113 of the California Vehicle Act as in effect at the time of the accident. It also affirmatively appears that the defendant violated the provisions of section 129 of the California Vehicle Act (as amended by St. 1929, p. 541) in passing to the left of the center of the intersection, and of section 130 of the same act (as amended by St. 1925, p. 413) in failing to give the proper arm signal over the required space, before commencing his left turn. It therefore must be admitted that both of these drivers were guilty of negligence per se.

Subdivision (a) of section 130 of the California Vehicle Act (1925) contains the following: “The driver of any vehicle upon a public highway before starting, turning or stopping such vehicle shall first see that such movement can be made in safety, and if it can not be made in safety, shall wait until it can be made in safety.”

From Lewis' own testimony it might be urged with some degree of sincerity that he should have realized his left turn could not be made in safety under the conditions confronting him. When he was forty feet south of the intersection he saw Pelletier about three hundred feet north of it. When he reached this intersection he again saw Pelletier about one hundred fifty feet north of it approaching at a speed of forty–five or more miles an hour. While he traveled forty feet, Pelletier had traveled about one hundred fifty feet, and was still rushing down upon the course Lewis was taking. Lewis had reduced his speed from fifteen miles to about ten miles per hour at that time. He pursued a curving course to his left and the front of his vehicles traveled about fifteen feet before leaving the pavement. The vehicles had an over–all length of twenty–six and one–half feet. This would make the rear of his trailer travel about forty–one and one–half feet before it cleared the pavement and left the west half clear to approaching traffic. This left the margin of safety very narrow, if it existed at all.

The evidence of Jensen was less favorable to the defendant. He testified that when Pelletier was twenty feet north of the intersection the rear of the trailer was astride the center line of McCall avenue at a place about opposite the north line of the sidewalk on the south side of Gaither street. If this be accepted as true the entire west half of McCall avenue was blocked by the coach and trailer.

Respondent cites the case of Kienlen v. Holt, 106 Cal. App. 135, 288 P. 866, 870, as holding that he was free from negligence in assuming that he could make his left turn in safety with the Pelletier car one hundred fifty feet away when he entered the intersection. He cites the following quotation from that case: “While the right to assume that appellant would exercise due care in the operation of his automobile would not excuse contributory negligence on the part of respondents, it furnishes a ground for a reasonable inference by the trial court, which supports the finding that neither of the respondents was guilty of any negligence which contributed to the accident in question, or to their injury. As was said in the case of Robinson v. Clemons, 46 Cal. App. 661, 190 P. 203, 204: ‘Any one, the most careful, about to cross a highway and observing another vehicle approaching at a distance of from 100 to 150 feet, would not deem it necessary to stop or to do any particular thing to avoid a collision. He would properly assume and have a right to assume that the other car was not violating all rules of prudence by excessive speed; that he had plenty of time to cross and act accordingly. This would be the attitude of any reasonable man under the circumstances, and therefore the plaintiff was not guilty of a want of ordinary care in pursuing his journey.’ ”

Two important differences between that and the instant case exist which make the quotation not controlling here. The Kienlen Case was tried, submitted, and findings made which absolved the plaintiffs from contributory negligence. Under such circumstances the appellate court must resolve all conflicts of evidence, presumptions, and reasonable infer ences in favor of the judgment. In the instant case the trial judge withdrew the case from the jury. In Burgesser v. Bullock's, 190 Cal. 673, at page 683, 214 P. 649, 653, it was said: “ ‘If there was any substantial evidence tending to show that the collision was caused by negligence on the part of defendant's driver, the action of the court in directing a verdict was, of course, erroneous. The existence or nonexistence of negligence is ordinarily a question of fact to be determined by a jury. On the other hand, the court may withdraw the case from the jury and direct a verdict where the evidence is undisputed, “or is of such conclusive character, that the court, in the exercise of a sound judicial discretion, would be compelled to set aside a verdict returned in opposition to it.” ’ ”

The second distinction is found in the quotation from Robinson v. Clemons, supra, where it appears that the plaintiff did not know that the defendant was traveling at an excessive rate of speed. Lewis admitted that he knew when he commenced his turn that Pelletier was approaching the intersection at forty–five or more miles an hour, an excessive speed under the circumstances.

Respondent urges that in Robbiano v. Bovet (Morgan v. Ragno) 24 P.(2d) 466, 471, the Supreme Court announced the correct rule in cases of this kind by approving the following remark of the trial judge in that case. “ ‘ “If the case went to the jury on the present testimony and the jury found against Ragno I would be compelled on motion for a new trial to grant it as to him.” ’ ” An examination of that case shows there was no evidence upon which a judgment for Miss Morgan could be supported. The language used by a court must be read and construed in connection with the facts of the case. The action of the trial judge withdrawing the case from the jury under the circumstances there disclosed was proper and his remarks were appropriate to the facts of the case before him. We do not conclude that the holding in that case conflicts with or modifies the rule announced in Burgesser v. Bullock's, supra, and the many recent decisions supporting it.

In Johnson v. Southern Pacific R. R. Co., 154 Cal. 285, at page 295, 97 P. 520, 524, it was said: “It is claimed that the court should have instructed the jury on the motion of defendant to return a verdict in its favor upon the ground that the evidence showed that the deceased was guilty of contributory negligence. The right of a defendant to have a jury so instructed can only obtain where the evidence conclusively establishes such negligence. It is only where no fact is left in doubt, and no deduction or inference other than negligence can be drawn by the jury from the evidence, that the court can say, as a matter of law, that contributory negligence is established. Even where the facts are undisputed, if reasonable minds might draw different conclusions upon the question of negligence, the question is one of fact for the jury.”

When it has been proved or admitted that a defendant has been guilty of negligence per se, it is usually the province of the jury to determine whether or not such negligence was the proximate cause of the injury of the plaintiff. Rosella v. Paxinos, 110 Cal. App. 299, 294 P. 39; Hayes v. Emerson, 110 Cal. App. 470, 294 P. 765; Huber v. Scott, 122 Cal. App. 334, 10 P.(2d) 150.

Respondent suggests that as his automobile and trailer did not strike, and was not struck by either of the other cars, the negligence of Pelletier must be held to be the sole proximate cause of plaintiff's injury. In Hill v. Peres (Cal. App.) 28 P.(2d) 946, 949, it was said: “The law does not require that the negligence of a defendant must be the sole cause of the injury in order to entitle the plaintiff to recover therefor. All that is required is that the negligence in question shall be a proximate cause of the injury. Griffith v. Oak Ridge Oil Company, 190 Cal. 389, 212 P. 913; Dewees v. Kuntz, 130 Cal. App. 620, 20 P.(2d) 733. * * * The rule is stated in Hale v. Pacific Telephone & Telegraph Co., 42 Cal. App. 55, 183 P. 280, 281, and approved in Sawyer v. Southern California Gas Co., 206 Cal. 366, 274 P. 544, that ‘where the original negligence of a defendant is followed by an independent act of a third person, which results in a direct injury to a plaintiff, the negligence of such defendant may nevertheless constitute the proximate cause thereof if, in the ordinary and natural course of events, the defendant should have known the intervening act was likely to happen; but if the intervening act constituting the immediate cause of the injury was one which it was not incumbent upon the defendant to have anticipated as reasonably likely to happen, then, since the chain of causation is broken, he owes no duty to the plaintiff to anticipate such further acts, and the original negligence cannot be said to be the proximate cause of the final injury.’ Whether the negligence of the two appellants here was independent or concurrent was largely a question for the jury whose finding is conclusive on appeal if there be evidence to support it. Jordan v. Great Western Motorways, 213 Cal. 606, 2 P.(2d) 786.”

Under the facts of this case, and the authorities cited, we are of the opinion that the trial judge erred in withdrawing the case from the jury and instructing it to return a verdict for the defendant.

Judgment reversed.

MARKS, Justice.

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