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District Court of Appeal, Third District, California.


Civ. 4966.

Decided: May 04, 1934

M. J. Cheatham, of Red Bluff, and Carr & Kennedy, of Redding, for appellants. J. Oscar Goldstein, of Chico, for respondents.

This is an appeal from a judgment upon a verdict of the jury for damages in an automobile accident. Plaintiffs had judgment, from which the defendants appeal.

About 5:45 on the evening of December 21, 1931, Andrew Smarda and his wife, Anna Smarda, were proceeding southerly in their automobile on the Pacific Highway, near the town of Corning. Mrs. Smarda was seated in the front seat beside her husband. It was raining very hard as they approached the northerly limits of Corning. When they had reached a point on the highway approximately where the “city limits” sign of the north boundary of the city of Corning was located, a large car with glaring headlights approached from the opposite direction and so obscured their vision they could see nothing in front of them. The paved portion of the highway at this point is 20 feet in width, approximately straight and level. About this time plaintiff reduced the speed of his automobile until he was traveling at a speed approximately 20 miles an hour. He continued at this speed for approximately 275 feet, when he collided with a Fageol truck standing in the highway, demolishing the car and causing severe injuries to Mrs. Smarda.

The passenger car was equipped with an automatic windshield wiper in front of the driver's seat, but, owing to the rain and the glare of the headlights of the approaching automobile, neither Mr. nor Mrs. Smarda were able to see anything in front of them, but did see the “city limits” sign and the fence and power poles on the right of the highway. On this point plaintiff Smarda testified on direct examination:

“* * * I slowed down because a heavy rain been setting in and I keep on slowing and I seen that here that second stop sign for the city limits. I kept on slowing down, went at the rate of twenty not over 25 miles and as I passed the city limits kept on going slow with my foot on the brakes all the time because I been slowing down. A heavy car from the opposite direction been coming with powerful headlights, blinded my eyes so I couldn't see no left hand side but I could see telephone and power line poles, and I could have a clear vision of the right hand side of the road. * * * Well, I just been blinded, as I say to the left, but I could see clear to the right because I seen that city limits and seen that pole and as soon as it had been just like a flash that car passed and the truck loomed right in front of us. * * * I got 4 wheel brakes. The brakes locked or something and the car just shot forward on the wet pavement and she skidded on the wet pavement with all the force she had into that truck, the truck being at a standstill. * * *

“Q. How long did it last? A. The car (referring to the car with the glaring lights) went awful speed. Looked like it happened in a second.”

On cross–examination the witness continued: “Q. You continued to drive in a southerly direction with those lights shining in your eyes? A. At a slow speed keeping my foot on the brake.”

Upon the taking of the testimony of Mr. Smarda by deposition prior to the trial, he said in answer to the question: “Now when was the first, Mr. Smarda, that you saw the truck with which you collided? A. Well I tell you. We cross that bridge coming over to Corning, that's where I slowed down before you come to the city limits, because cars are passing at awful speed the opposite direction, and I slow down and cross that bridge, see, then passed the city limit, the big heavy car with powerful headlights approaching me, then I couldn't see no truck, nothing. * * *”

The truck in question, owned by Clark A. Morse and operated by Van M. Morse, was also proceeding southerly along the Pacific Highway, and had reached a point about 275 feet south of the northern “city limits” sign, when one of the gasoline reservoirs became empty. The truck stopped on the highway with the left side of the truck about 10 inches to the right of the center of the highway. The driver alighted and turned on the reserve gas reservoir, and had just returned to his cab when the impact between his truck and the car of plaintiffs occurred. Whether or not the lights on the truck were burning is in dispute. Plaintiffs claim the lights were not burning until after the collision, when they were flashed on; while the driver testified the lights, including the tail and side lights, were burning all of the time, as he had turned them on about an hour previously, and, when he alighted to turn on the gasoline tank, saw them burning at that time. We may assume, however, that the implied finding of the jury was that the tail–lights of the truck were not burning. Plaintiff saw the truck an instant before the impact, but too late to avoid the collision.

Upon this state of facts, defendants contend the verdict in favor of the plaintiffs is not supported by the evidence, or, in other words, that the plaintiffs were guilty of contributory negligence as a matter of law.

There is no question that if Andrew Smarda, the husband, was guilty of contributory negligence, such negligence is imputable to the wife. Basler v. Sac. Gas & Elec. Co., 158 Cal. 514–518, 111 P. 530, Ann. Cas. 1912A, 642; Solko v. Jones, 117 Cal. App. 372, 374, 3 P.(2d) 1028.

Plaintiff testified that immediately prior to the impact he was proceeding at a speed approximately 20 miles an hour, but whether or not this was a lawful or reasonable rate of speed depends on the particular circumstances, and is subject to the provisions of subdivision (a) of section 113 of the California Vehicle Act (St. 1923, p. 553, amended by St. 1931, p. 2120), which reads in part as follows: “Any person driving a vehicle on the public highways of this state shall drive the same at a careful and prudent speed not greater than is reasonable and proper, having due regard to the traffic, surface and width of the highway, and no person shall drive any vehicle upon a public highway at such a speed as to endanger the life, limb or property of any person.”

While ordinarily it would be a question of fact for the jury to determine whether or not the driver of a car was proceeding at a careful and prudent speed, having due regard to the surrounding circumstances, yet, if contributory negligence is apparent from the record, it becomes the duty of the court to so declare.

“Where an honest difference of opinion between men of average intelligence can arise as to the effect of the evidence––that is, if the evidence is such as that different conclusions upon the matter can rationally be drawn therefrom––then the case presented is one for the jury.” Firth v. Southern Pacific Co., 44 Cal. App. 511, 186 P. 815, 816. Inasmuch as the rule of comparative negligence is not applied in our jurisdiction, we are compelled to say that where, as here, the facts show the negligence of the driver continues up to the very moment of the collision, his negligence must be held to constitute the proximate cause of the injury.

In Hatzakorzian v. Rucker–Fuller Desk Co., 197 Cal. 82, 239 P. 709, 715, 41 A. L. R. 1027, the circumstances were quite similar to those here presented. It is there said:

“(1) He was traveling, up to the time the glare reflected from the lights of the approaching automobile * * * at the rate of 25 miles an hour; (2) when the glare struck his eyes he was a distance of between 150 and 200 feet from where he collided with deceased; (3) the glare so obstructed his vision that he was unable to see an object on the highway before him, although his lights were in good condition and under ordinary circumstances he was able by them to discern an object before him at a distance of from 75 to 100 yards; (4) he did not see the deceased until after his car struck him; (5) when the glare first struck his eyes and blinded him, with the result as indicated, he diminished the speed of his car so that thereafter and until he struck deceased, he was still traveling at a speed of between 20 and 25 miles an hour; (6) he did not put on his brakes, nor turn off either the gas or ignition; (7) his brakes were in perfect order and he said he could have stopped his car between the time the glare first struck his eyes and the time he struck deceased, but that he did not do so, nor make any attempt to do so.”

The court then proceeds to a consideration of the care required of a driver under such conditions, as follows:

“ ‘Careful and prudent manner and at a rate of speed not greater than is reasonable and proper,’ is relative and contemplates the peculiar circumstances and conditions under which a car may be operated over a public highway at a particular time––whether it be after nightfall and dark or in the daytime and light, the width of the highway and whether it is one which, by reason of its connections, is or may naturally be expected to be at all times subject to a heavy or light traffic. In other words, said section requires the exercise of that amount of care in driving a motor vehicle over the highways which the circumstances or conditions of the particular occasion exact, having in view the character of the highway and the use to which it is then being put. As is said in 29 Cyc. pp. 428, 429: ‘The care required must be in proportion to the danger to be avoided and the consequences that might reasonably be anticipated from the neglect. The greater the risk of danger the greater must be the care. What is ordinary care in a case of extraordinary danger would be extraordinary care in a case of ordinary danger.’

“Under the circumstances of the present case––the narrowness of the unpaved portion of the highway, the darkness of the night and the blinding of Kennell by the glare of the lights reflected from the headlights of the approaching machine––the highway over which Kennell was traveling was beset by danger of an extraordinary character from the time his vision became so obscured as to make it impossible for him to see plainly the road before him to the time that he struck the deceased. Thus the ordinary care with which Kennell was charged in driving his car over the highway required such an amount of such care as was commensurate with the exactions of the extraordinary dangerous circumstances under which he was then operating his car.”

In Havens v. Loebel, 103 Cal. App. 209, 284 P. 676, 678, plaintiff, with his minor son, was approaching an intersection, and, blinded by the rays of the setting sun, drove into the intersecting highway and collided with a car driven by the defendant. This court held that plaintiff was guilty of contributory negligence as a matter of law in that he was traveling at the rate of 30 miles per hour with his eyes blinded by the sun, he could not or did not see the approach of the other car, and permitted his car to proceed under conditions rendering it impossible to see the car until within 4 or 5 feet of it. In that case the court reversed the judgment in favor of the plaintiff and held he was guilty of contributory negligence, and quoted with approval from the case of Hammond v. Morrison, 90 N. J. Law, 15, 100 A. 154, as follows: “The defendant did not deny that the decedent came to his death in the way above stated, but attempted to excuse himself upon the ground that just before the collision the street lights which he had passed were reflected into his eyes by the windshield of his car, so that he was unable to see in front of him, and that this temporary blindness was the cause of the collision. His own story demonstrates his lack of care. No man is entitled to operate an automobile through a public street blindfolded. When his vision is temporarily destroyed in the way which the defendant indicated, it is his duty to stop his car, and so adjust his windshield as to prevent its interfering with his ability to see in front of him. The defendant, instead of doing this, took the chance of finding the way clear, and ran blindly into the trolley car behind which the decedent was standing. Having seen fit to do this, he cannot escape responsibility if his reckless conduct results in injury to a fellow being.”

The Supreme Court of Michigan, in the case of Budnick v. Peterson, 215 Mich. 678, 184 N. W. 493, declares the rule that, if the vision of an automobile driver is obscured from the glaring lights of an approaching automobile, it is his duty to slacken his speed and have his car under such control that he may stop it immediately, if necessary.

In Meads v. Deener, 128 Cal. App. 328, 17 P.(2d) 198, the court, in accordance with the general rule, held the driver was negligent in not bringing his car under control, so that he could stop it immediately, when blinded by the approaching rays of the sun.

Such seems to be the general rule not only in California but in many other jurisdictions. Steele v. Fuller, 104 Vt. 303, 158 A. 666; Sellon v. Tanner, 252 Mich. 231, 233 N. W. 224; House v. Ryder, 129 Me. 135, 150 A. 487.

The same statement by appellant that he had the right of way is answered in the case of Donat v. Dillon, 192 Cal. 426, 221 P. 193, 194, where it was there claimed the defendant had the right of way; the court saying: “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.”

Respondent directs our attention to the case of Grimes v. Richfield Oil Company, 106 Cal. App. 416, 289 P. 245, 251, where respondent, driving at a rate of speed not in excess of 40 miles an hour, at an early hour in the morning, collided with a load of machinery overhanging the rear end of the trailer. There was no tail–light or any light visible to him from the rear of the truck or trailer. He did not see the truck or trailer until within 50 or 100 feet from the rear end thereof, and too close to stop with safety. In attempting to pass to the right of the trailer, he collided with the overhanging load, causing the injury. In that case, respondent was using ordinary care in the operation of his car. It could not be said as a matter of law his own negligence contributed to the injury. The rule is thus laid down in California “that 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 which comes to him only from violation of law or duty by such other person, provided, of course, that such person himself use reasonable care to observe the conduct of the other person so far as such conduct may affect his own safety at the time.” Harris v. Johnson, 174 Cal. 55, 161 P. 1155, L. R. A. 1917C, 477, Ann. Cas. 1918E, 560; Swartz v. Feddershon, 92 Cal. App. 285, 268 P. 430; Barton v. Studebaker Corporation of America, 46 Cal. App. 707, 189 P. 1025.

Respondent also relies upon the case of Gammon v. Wales, 115 Cal. App. 133, 300 P. 988. In that case the plaintiff was proceeding along a public highway about 7:30 p. m. on an evening in May, when he collided with a truck of defendant parked on the highway, whereby he suffered permanent injury. Defendant pleaded contributory negligence. At the conclusion of plaintiff's evidence the court granted a nonsuit. The evidence showed that at the time of the accident it was dark, and the highway was wet and slippery. The truck had been left unattended on the highway without either headlights or tail–lights. It further appeared that plaintiff was traveling on his proper side of the highway at a lawful speed at the time of the collision. If, however, it had appeared that plaintiff was at the time of the collision proceeding at an unlawful rate of speed in view of all the conditions, or if he were driving with his eyes blinded by the glare of the sun's rays, or by the dazzling lights of an on–coming car, or, as the cases say, as if blindfolded, contributory negligence would then be said to exist. The Gammon Case cannot therefore be held applicable to the present case.

Respondent next directs our attention to Silvey v. Harm, 120 Cal. App. 561, 8 P.(2d) 570, but there also Silvey, whose car collided with the unlighted truck or trailer of defendant, was himself without fault.

In Pattee v. King et al. (Cal. App.) 24 P.(2d) 564, the same rule was applied. Plaintiff himself was without fault. Apparently he was proceeding in a lawful manner, and solely as a result of the negligence of the defendant the damage was incurred.

It seems to us clearly apparent from the record, and the abundant authorities establishing the rule in California, that the negligence of plaintiff, which was the proximate cause of the injury, bars his recovery, and the judgment must be, and the same is hereby, reversed.

Mr. Presiding Justice PULLEN delivered the opinion of the court.

We concur: PLUMMER, J.; R. L. THOMPSON, J.

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