SEBRELL v. LOS ANGELES RY CORPORATION

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District Court of Appeal, Second District, Division 3, California.

SEBRELL v. LOS ANGELES RY. CORPORATION.

Civ. 15664.

Decided: October 03, 1947

Forrest A. Betts and Gaines Hon, both of Los Angeles, for appellant. Gibson, Dunn & Crutcher, of Los Angeles, for respondent.

Plaintiff commenced this action to recover damages allegedly sustained by her as the result of a collision between her automobile, which she was driving, and a streetcar owned by the defendant. In a trial by jury the verdict and judgment, were in favor of defendant. Plaintiff appeals from the judgment and the order denying her motion for a new trial.

Plaintiff contends that the court erred in instructing the jury that it should not consider the question of injuries or damages in determining the issue of liability.

On February 9, 1943, about 3:30 p. m., the streetcar, which was proceeding west on Sixth Street, and plaintiff's automobile, which was proceeding south on New Hampshire Avenue, collided at the intersection of those streets at a point approximately 2 to 5 feet west of the middle of the intersection. Plaintiff's automobile, a coupe, was crossing the westbound streetcar track and the front end of the streetcar struck the automobile on its left side. The automobile ‘bounced’ off the track, and then went over the curb and through a picket fence at the southwest corner of the intersection, and came to a stop against the front of the building on that corner. Plaintiff was thrown from the automobile to the pavement in the south part of the pedestrian crosswalk on the west of the intersection, and was several injured. The streetcar, which is 47 feet long, traveled approximately 78 feet after the collision.

Sixth Street extends in an easterly and westerly direction, is paved, and is 46 feet wide. Streetcar tracks extend along the middle of the street. The outside rail of the westbound track is about 15 feet from the north curb of Sixth Street, and the outside rail of the eastbound track is about 15 feet from the south curb on Sixth Street. There are no boulevard stop signs on Sixth Street requiring traffic approaching New Hampshire Avenue from the east or the west to come to a stop. New Hampshire Avenue extends in a northerly and southerly direction, is paved, and is 42 feet wide. There is a boulevard stop sign on New Hampshire Avenue about 13 feet north of the north entrance to said intersection. There is a white line on the pavement on New Hampshire Avenue about 3 feet south of the boulevard stop sign, which line extends from the west curb to the middle of the avenue. About 5 feet north of this white line the word ‘Stop’ is painted on the pavement in large white letters. Sixth Street, from the east, slopes downward toward the intersection. The sidewalk along the north side of Sixth Street, east of the intersection, is about 11 feet wide, and the buildings in this vicinity extend to the sidewalk. The building on the northeast corner of the intersection also extends along, and within a few inches of, a 4-foot sidewalk on New Hampshire Avenue. There is a lamp post on the north side of Sixth Street, about 8 feet east of the prolongation of the east curbline of New Hampshire Avenue, to which is attached a street sign bearing the words, ‘So. New Hampshire Ave.’ About 5 feet east of the lamp post, and in a direct line with it, is a telephone pole which leans toward the building on the northeast corner of the intersection.

Plaintiff testified that she brought her automobile to a stop back of the white line on New Hampshire Avenue before entering the intersection; that she looked to the left and to the right carefully but she did not see the streetcar or any ‘moving traffic’ on Sixth Street; that she did not know how far east on Sixth Street she could see; that she could not ‘tell’ whether she pulled up close enough to the white line to have a clear view eastward; that the bumper (apparently front bumper) of the automobile was back of and almost to the white line; that the intersection is a very blind one; that the beauty shop on the northeast corner extends out close to the curbline and obscures the view, from the north side of the intersection, to the east; and that she remembers ‘nothing at all’ from the time she brought her automobile to a stop until after the collision.

A witness, called on behalf of plaintiff, testified that she was manager of a library on Sixth Street (which library is approximately 67 feet east of the east entrance of the intersection); that on the day of the accident as she was about to enter the library she saw the streetcar approaching, and its bell was ‘clanging in an ordinary manner’; that she entered the library and as the streetcar was going past the door of the library she heard its bell ringing louder and rapidly; that she turned around to go outside again, and as she got to the door she heard the crash; that she turned back into the library, telephoned for an ambulance, and then ran to the scene of the accident; that when she arrived plaintiff was lying on the pavement beside the outside rail of the eastbound streetcar track; and that plaintiff's face was cut, and her right eye was ‘out of her face.’

Another witness, called on behalf of plaintiff, testifled that he was walking in an easterly direction on the south side of Sixth Street when he first saw the streetcar, which was then proceeding toward New Hampshire Avenue; that he continued walking and heard the bell ‘clanging’ loudly, but he did not observe the streetcar again until he heard the collision; that he then turned around, and saw plaintiff lying on the pavement by the gutter on the south side of Sixth Street; and she was unconscious.

A police officer, called as a witness on behalf of plaintiff, testified that he arrived at the scene of the accident about 3:45 p.m., at which time plaintiff was lying on Sixth Street, at the side of the gutter and near the southwest corner, and her talk was incoherent; that there were ‘brush marks' on the pavement which indicated the point of impact; that he talked with the streetcar motorman who told him that he was traveling approximately 18 miles an hour when he first saw plaintiff's automobile; that it was then about 5 feet into the intersection, and traveling 25 to 30 miles an hour; that at that time the front of the streetcar was approximately even with the ‘easterly extension of New Hampshire’ Avenue, and he was unable to avoid crashing into the side of the automobile; and that the motorman then told him it was his opinion, based upon the speed of plaintiff's automobile, that she did not make the boulevard stop before entering the intersection.

It was stipulated that another police officer, called as a witness on behalf of plaintiff, would testify in substance the same as the last witness, except that he did not interview anyone at the scene of the accident.

The motorman, called under section 2055 of the Code of Civil Procedure, testified that when he first saw plaintiff's automobile the front end of it was across the white line, and it was traveling 25 to 30 miles an hour; that at that time the front of the streetcar was 10 or 15 feet east of the east entrance to the intersection, and it was traveling 20 or 25 miles an hour; that he put his foot on the emergency brake as soon as he could get it on; that the brakes had just taken hold about the time of the collision, and he had to hold himself in his seat when the brakes took hold; that the front of the streetcar collided with the door of the automobile on the side where plaintiff was sitting; that plaintiff did not vary her speed after he first saw her; that she drove in a straight course, and did not ‘look up’ before the streetcar struck the automobile; that there was nothing to obstruct his view; that in operating a streetcar, he looks straight ahead and from curb to curb or from sidewalk to sidewalk; that if he turned to ‘look up’ a street, he might hit someone on the other side; that the only way he could explain the accident was that he did not look up and down New Hampshire Avenue; that the streetcar is known as a ‘streamliner,’ and he had been operating that type streetcar since 1937; that it is the most quiet type streetcar defendant owns; that it has greater ‘pick-up’ and speed than the older type streetcars, and it has 3 kinds of brakes; that at a speed of 25 miles an hour, it would take from 110 to 120 feet to stop the streetcar from the time the brakes were applied; and that at the time of the accident there were 15 to 20 passengers in the streetcar. In testifying in defendant's behalf, the witness stated that he had stopped the streetcar at Vermont Avenue, and had waited through one signal because he was ahead of time.

A witness, called on behalf of defendant, testified that she was a passenger on the streetcar at the time of the collision; that she gave her name, as a witness, to the motorman; that she was seated in the fourth or fifth seat back from the front of the streetcar, on the right-hand side of the car next to the window, and facing the front; that she was sitting in a position about 16 feet east of the east entrance to the intersection when she first observed plaintiff's automobile; that at that time the automobile was moving and was approximately 10 feet north of the boulevard stop; that it looked ‘like it would come through the stop sign and strike’ the witness; that the automobile did not come to a stop before entering the intersection, and she (the witness) prepared herself for an accident by grasping the bar on the back of the seat in front of her and bracing herself; that she felt the streetcar slow down a little, and she felt the impact of the collision; that she immediatly had a ‘pretty definite conclusion’ that the plaintiff was at fault; that the witness's life was in danger and plaintiff was to blame; that she knows nothing about speed, but she would say plaintiff was traveling approximately 20 miles an hour. She later testified that she believed she could say plaintiff was traveling 30 miles an hour. She also testified that she did not pay any attention to where the streetcar came to a stop; and that she did not get out of the streetcar at the scene of the accident.

The court instructed the jury, at the request of defendant, ‘that it would be a violation of your duty as jurors to consider the question of injuries or damages, if any, prior to determining the issue of liability or to allow the question of injuries or damages, if any, to affect your judgment in any way in determining the issue of liability.’ Prior to giving that instruction, the court had instructed the jury, at the request of plaintiff, as follows: ‘It is the testimony of the plaintiff in this case that she does not recollect any event related to the accident, and that her last recollection is that of having brought her automobile to a stop with the front end of it approximately even with the boulevard stop sign, which is located at the northwest corner of the intersection. A person who has been so grievously injured in an accident as to be deprived of her memory is entitled to the presumption that she exercised reasonable care for her own protection. This is a rebuttable presumption, but is one to which the plaintiff is entitled to have you give consideration at all points in the case, and even unto the deliberation in the jury room.’ The evidence on behalf of plaintiff, under plaintiff's theory of the case that she was entitled to such presumption, was sufficient to justify the giving of the last quoted instruction. The effect of that instruction was that if the jury found that plaintiff had been injured to the extent that she had been deprived of her memory she was entitled to the presumption that she exercised reasonable care. In other words, the jury was directed that it should consider plaintiff's injuries in order to determine whether the presumption should be applied in plaintiff's behalf. Such a presumption is a form of evidence, and, if applicable herein, it would of course be evidence on the question of liability. It therefore appears that the jury was instructed in effect to consider the injuries of plaintiff in determining the question of liability. As shown by the other instruction, first above quoted, the jury was instructed that it should not consider the question of plaintiff's injuries in any way in determining the issue of liability. Those two instructions were conflicting. According to plaintiff's theory of the case, namely, that by reason of her personal injuries she did not remember what happened after she made the boulevard stop, the question as to whether the facts were such that she was entitled to the presumption that she exercised reasonable care for her own protection was an important and material issue concerning liability. The conflict in those instructions pertained to a material matter, namely, as to whether the personal injuries of plaintiff should have been considered by the jury in determining the question of liability. It cannot be ascertained, of course, which instruction was followed by the jury. The giving of those instructions was prejudicially erroneous.

In the case of Simmons v. Lamb, 35 Cal.App.2d 109, 94 P.2d 814, 816, it was held to be prejudicial error to give an instruction that ‘it would be a violation of your duty as jurors to discuss the nature and extent of plaintiff's injuries, if any, until you shall have first determined the question of whether or not the defendant is liable.’ In that case material questions were: (1) Whether the plaintiff or an alleged intoxicated person, who was also riding in the front seat, was driving plaintiff's automobile when it collided with defendants' parked truck from which oil pipe extended about 8 feet beyond the rear thereof, and (2) where the truck was standing at the time of the collision. As a result of the accident therein the plaintiff's throat was cut from ear to ear, and there was a large hole in the right side of the windshield, and a small hole in the windshield in front of the driver's seat. Plaintiff therein testified that she was driving the automobile, but defendants argued that she was not driving ‘because her throat was cut and because after the accident flesh, blood and hair were found on the broken windshield’ in front of the place where a passenger would be sitting. There was other evidence therein that three of plaintiff's left ribs were broken at a place where the lower part of the steering wheel would touch her body if she were driving the automobile, and she testified that she was not cut by glass—her theory being that the oil pipe pierced the windshield in front of the driver's seat and cut her throat. There was also evidence that plaintiff's daughter, who was riding in the rear seat, was thrown into the front seat and received a cut in her scalp above the hairline; and that there was blood on the shoulder of the highway. The court said therein, 35 Cal.App.2d at page 114, 94 P.2d at page 816: ‘It was therefore necessary for the jury to consider all of this evidence with reference to respondent's injuries in order to determine whether or not she was driving her car at the time of the collision.’ It was also said on that page: ‘The instruction is given, [referring to the instruction that the jury should not consider plaintiff's injuries] * * * withdrew from the consideration of the jury certain facts which they should have had before them when they fixed the liability for the accident.’ In that case, as above stated, plaintiff's injuries were material upon the questions as to who was driving the automobile and where the truck was standing, and those questions, of course, were material in determining liability. In the present case, as above stated, plaintiff's injuries were material upon the question as to whether she suffered a loss of memory to the extent that she would be entitled to the presumption that she exercised reasonable care, which question, of course, was material in determining liability.

Appellant herein argues that the instruction in Simmons v. Lamb, supra, is distinguishable from the instruction herein in that the instruction herein states that the jurors should not consider ‘the question of injuries or damages' in determining liability, whereas the instruction in the Simmons case states that they should not consider ‘the nature and extent of plaintiff's injuries.’ Appellant argues further that the instruction given herein, that the jurors should not consider the question of injuries or damages in determining liability, ‘is far different from instructing the jury that they should not consider the injuries or damages in determining liability,’ and that under the instruction given herein ‘the jury would certainly be at liberty to give consideration to the injuries or damages in determining the question of liability.’ The difference in meaning between the expression ‘the question of injuries,’ and ‘the nature and extent of injuries' is not significant.

As to the matter of liability, the court instructed the jury: ‘In determining how the accident happened * * * you are entitled to take into consideration those physical facts as are established by the evidence to have existed, insofar as they are pertinent to the accident. Such matters as the measurement of the highways * * * the surface thereof * * * the comparative sizes of the vehicles, the physical damage done to the vehicles * * * the distances which the vehicles traveled or were knocked as a result of the accident * * * also, all of such other physical facts as are established to your satisfaction, are matters which you may take into consideration in arriving at what the facts were.’ It therefore appears that the court instructed the jury specifically that in determining liability the jury might consider the physical damage to property. Such instruction is a further indication that the court withdrew from the jury a consideration of plaintiff's personal injuries in determining liability.

The judgment is reversed. The appeal from the order denying the motion for a new trial is dismissed.

WOOD, Justice.

SHINN, Acting P.J., and KINCAID, Justice pro tem., concur.