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District Court of Appeal, Fourth District, California.


Civ. 3024.

Decided: April 26, 1943

McFadzean & Crowe, of Visalia, for appellant. Russell & Heid, of Tulare, for respondent.

This is a personal injury action and the defendant has appealed from a judgment in favor of the plaintiff.

The defendant was and for some years had been engaged in the milk business, buying milk in wholesale quantities, bottling and refrigerating it and then distributing the same on a regular milk route. His processing plant was in some buildings at the rear of his home in the residential section of Tulare. The lot itself was 51 feet wide and 142 feet deep. The house faced south and these other buildings were at the northwest corner of the lot and about 14 feet from the rear of the house. The southwesterly portion of these buildings consisted of an open shed about 16 feet wide, the westerly half of which was used as a garage, and on the easterly half there was a cement floor used as a loading platform in loading and unloading the milk truck. There was a narrow driveway about 7 1/2 feet wide from the street in front, along the west side of the house, and leading directly into the garage portion of the shed. The loading platform in the easterly half of the shed was behind the westerly portion of the house so that to enter or reach the same it was necessary to drive the milk truck along the narrow driveway to the northwest corner of the house and then turn easterly in an “S” turn, and thus enter the easterly half of the shed. The milk truck was a panel truck with a solid closed body. For convenience in loading and unloading it was the defendant's custom, when entering his premises, to back his truck along the narrow driveway and when he reached the northwest corner of the house to turn it easterly in an “S” turn and back to the loading platform.

At the north end of the west or garage half of the shed there was a raised platform about 5 feet from the ground. On this platform were two cooling compressors operated by electric motors. About 2:30 p.m. on December 29, 1939, one of these electric motors was giving trouble and the defendant called a repair man named Wood who came and after examining the motor reported that he did not have the parts required and suggested that he would call another repair man. The defendant acquiesced although he did not learn who it was that Wood intended to call. He informed his wife that Wood was going to call some one else and that she could expect some refrigerator man there during the afternoon. He then left at about 3:30 p.m. in his milk truck to cover his route. He did not return until 7 o'clock that night and did not see the plaintiff until after the accident occurred.

In the meantime, in response to a call to his employers, the plaintiff came to the premises about 4 o'clock. At that time Mrs. Hoffman's automobile stood in the driveway facing the garage portion of the shed but not within the shed. Three milk crates cleated together stood in front of the raised platform at the north end of the garage portion of the shed. The plaintiff stood upon these and examined the motor which was out of order. He informed Mrs. Hoffman that it would be necessary to take the motor to the shop in order to make the repairs. He testified that Mrs. Hoffman told him that it would be necessary to repair the motor and return it that night as otherwise the milk would spoil, and that he told her that he would get it back that evening before he went home. He removed the motor, placed it in his Ford pickup, which he had parked in the driveway behind Mrs. Hoffman's car, and took it to the shop where he made the necessary repairs.

He brought the motor back about 6 o'clock, driving his car into the narrow driveway and parking it near the northwest corner of the house with its rear 4 or 5 feet along the west side of the house and the front portion extending toward the garage half of the shed. He then found that Mrs. Hoffman's car had been driven forward under the shed and that the three crates on which he formerly stood had been moved over onto the loading platform. He backed Mrs. Hoffman's car about 4 feet so that the rear 4 feet thereof was outside the shed, on the driveway, at which time the rear end of that car was about 3 feet north of the front end of his own car. He put both his own car and Mrs. Hoffman's car in reverse gear. He testified that his reason for so doing was that “in case of someone hitting it, why, it wouldn't shove the car down,” and that he understood there was a law that parked cars should be either left in gear or the emergency brake applied. He then moved the three milk crates to a position between the front of Mrs. Hoffman's car and the raised platform on which the compressors were located. He then took the electric motor and some tools from his car and proceeded to reinstall the motor on the raised platform, standing on the three milk crates to enable him to do the work. There was an electric light at the north end of the shed near where the compressors were located, which was burning, and the plaintiff testified that when he arrived about 6 o'clock there was a light burning somewhere in the defendant's house and that it was light enough to enable him to find the tools, which he needed, in his car.

At 7 o'clock the defendant returned from servicing his milk route. He approached his home from the west and looking up the narrow driveway saw nothing therein. In accordance with his usual custom he then headed out into the street and backed his panel truck into the narrow driveway with the intention of making the “S” turn at the rear of his house and backing the truck to the loading platform in the east half of the shed. He did not know that the plaintiff had removed the electric motor and taken it to the shop, and he testified that on a previous occasion when the motor had given similar trouble it had been repaired on the premises without being taken away. He further testified that he thought that any work which had to be done on the motor would have been completed before that time, and that ordinarily his wife's car was parked entirely within the shed when he returned from his trips so as to leave the driveway clear for him to back to the loading platform.

The driveway was narrow and it was necessary for him to change the course of the vehicle at the northwest corner of his house so as to turn the rear end thereof toward the east half of the shed, where the loading platform was located. He testified that in order to do this it was necessary for him to watch the edge of the narrow driveway and to watch closely for the northwest corner of his house, since it was necessary to go as close as possible thereto in order to complete the operation of backing up to the loading platform. He testified that he drove very slowly, estimating his speed at one or two miles per hour, and that as he proceeded he held the door of his truck open with one arm and continuously looked backward with his main attention centered on the northwest corner of his house.

When he arrived at a point about 4 feet from the northwest corner of his house his truck hit the rear end of the plaintiff's car which was unlighted. This shoved the plaintiff's car forward the 3 feet which separated it from Mrs. Hoffman's car and in turn pushed the latter car forward 2 feet and against the crates on which the plaintiff was standing with his back toward both vehicles. The plaintiff fell backward upon the radiator of Mrs. Hoffman's car and received the injuries which are here in question. The defendant testified that when he returned to his home at 7 o'clock he was unable to see the plaintiff's car in his driveway because it was dark and it was completely obscured by the shadow caused by his wife's car.

There is little conflict in the evidence. The plaintiff testified that in a conversation immediately after the accident the defendant told him that he had been in the habit of backing into the driveway without looking “clear back”, that he did not know the plaintiff was there, and that “he had forgotten about anyone being there working on the motor”. The defendant denied having made any of these statements to the plaintiff except that he did not know that he was there. It does appear, without contradiction, that before turning out to back into his driveway the defendant looked along the driveway toward the garage and saw nothing, and that as he backed in he was watching the edge of the driveway and looking for the northwest corner of his house in order to make the turn required at that point. It would also seem clear from the general situation and the fact that he was driving a solid panel truck that from where he sat as he was backing his truck in along this driveway he could not have seen the plaintiff's car which was parked therein directly behind him. While the plaintiff testified that it was light enough about 6 o'clock to enable him to get his tools from his car there is neither evidence that this was the situation at 7 o'clock, when the defendant returned, nor any evidence that the scene was so lighted that the defendant ought to have seen the plaintiff's car while he was backing his own truck into the driveway. Assuming that the defendant stated to the plaintiff that he had forgotten about any one working there on the motor it also appears without contradiction, that he had no knowledge of the plaintiff's conversation with Mrs. Hoffman and that he did not even know that the plaintiff had taken the motor away from the premises.

The main question presented is as to whether the court's finding, that the defendant “so carelessly, recklessly and negligently and without regard for the safety of plaintiff, drove, managed and operated” his milk truck as to cause it to shove the other vehicles forward, is sustained by the evidence. The burden was on the plaintiff to prove negligence on the part of the defendant and, since the doctrine of res ipsa loquitur is not applicable here, it was incumbent upon the plaintiff to establish by the evidence some specific act of negligence on the part of the defendant, or in other words to establish that he did some act which a reasonable man would not have done under the existing circumstances.

The plaintiff first argues that such negligence appears in that the defendant drove his milk truck, from which at best it is most difficult to see, in a backward direction and without looking toward the place where the plaintiff was working, with such speed as to move two automobiles, both in reverse gear, with sufficient force to topple the plaintiff from the milk crates upon which he was standing. While it would take some force to move two vehicles which were standing in reverse gear there would naturally be considerable force from the milk truck which was traveling in reverse, and there is nothing in the fact thus relied on to indicate that any excessive speed was used by the defendant in backing into his driveway. This was the defendant's driveway and the controlling question must be, and is, whether he should have anticipated the possible presence of the plaintiff's car on this driveway, and not with respect to any particular speed at which the defendant was moving.

Upon the controlling issue plaintiff relies upon the rules laid down in Colgrove v. Lompoc, etc., Club, 51 Cal.App.2d 18, 124 P.2d 128, and Yamauchi v. O'Neill, 38 Cal.App.2d 703, 102 P.2d 365, and argues that it appears from the evidence here that this driveway was commonly used by the defendant's customers and others, and that the defendant should therefore have known of, or had good reason to expect, the presence of the plaintiff's car upon this driveway in the position in which it was parked. In the first of these cases, it was held that if the plaintiff was rightfully upon a part of the premises where the operator of an automobile knew or had reason to expect him to be the operator of the automobile owed him a duty to exercise ordinary care to avoid injuring him. The second of these cases involved a driveway, leading to a court in the center of a business building in which were a number of stores, which was customarily used in common by all of the tenants in the building and persons having business with them. The plaintiff was injured while walking in this driveway by a panel truck which was backed into her and the court there applied the same principle, that the driver of an automobile owes the duty of exercising ordinary care to a person walking in a place where the operator knew or had good reason to expect that he would be.

In order to bring himself within this rule the plaintiff relies upon the following testimony. The defendant testified on cross–examination that when Mr. Wood came to look at the electric motor early in the afternoon of this day, he drove into this driveway and parked “toward the back end of the driveway.” He was then asked “That is the common place for people who have business back there, to go?” and he replied: “Yes.” Again, he was asked whether he had any of that kind of trade where people called at his place of business to get their milk. He then testified that he occasionally had such people although they tried to discourage it, that he had four neighbors who did this and that occasionally people would be out of milk and “even get us out of bed at night, knowing we are in the milk business and live right there at our business.” This is all of the evidence on this subject and we think it falls short of showing such a common or general use of this driveway as would support an inference that the defendant either knew or should have expected the presence of an unlighted car parked in this private driveway at this time and under these circumstances. There is no evidence that the few people who occasionally called to get milk ever came in cars or, if they did, ever parked these cars in this driveway. While it may have been common for people who had business there to drive into the driveway, as the defendant testified, he was then talking about people who came on business as the repair man Wood had done, which was in the daytime, and there is no evidence that any one had ever before come on business at night and parked his car in this driveway. The uncontradicted evidence is that the defendant was in the habit of backing into this driveway on his return from his delivery trips and the only reasonable inference is that this driveway was not commonly or customarily used by any one who came on business after nightfall as a place for parking his car. There is no evidence that any one prior to this time, whether customarily or otherwise, had ever parked an unlighted or unguarded car in this position after ordinary business hours. The defendant looked up the driveway before entering the same and in thereafter watching the edge of the driveway and looking closely for the northwest corner of the house, where it was necessary to make a turn, he was doing what it was necessary to do and what any reasonable person would have done. In the absence of anything which would naturally lead him to expect that another's car would then be parked in the driveway it cannot be said that as a reasonable man he should have left his truck and walked back to the loading platform to see that the way was clear. From his past experience and from what he then knew, or could reasonably have been expected to have anticipated, he was justified in believing that the situation was that which usually and customarily prevailed and that he could proceed to the loading platform in the usual manner. It was his own private driveway, it was long past ordinary business hours, he did not know that the motor had been taken away or that any one had returned with it and, in our opinion, the evidence does not support the inference that he had good or any reason to expect the obstruction in his driveway which actually existed. It follows, we think, that there is no substantial evidence to support the essential finding made by the court.

For the reasons given, the judgment is reversed.

BARNARD, Presiding Justice.

MARKS and GRIFFIN, JJ., concur.

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