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District Court of Appeal, Fourth District, California.


Civ. 3626.

Decided: June 16, 1947

Huntington P. Bledsoe, of San Diego, for appellants. Edgar B. Harvey, of San Diego (Henry F. Walker, of Los Angeles, of counsel), for respondent.

This is an appeal ‘from the verdict of the jury and the judgment made and entered thereon * * * as to the second and third causes of action only, and from the order of the Court denying defendants' motion for a judgment notwithstanding the verdict of the jury as to the second and third causes of action.’

Plaintiff and Essie Stickel were husband and wife. They were seriously injured in a collision between a Chevrolet pick-up truck and a bus belonging to the San Diego Electric Railway Company. The pick-up truck was being driven by Mrs. Stickel westerly on K Street, and the bus was being driven by Robert D. Amos southerly on Twelfth Avenue in the city of San Diego. Amos was the employee of the San Diego Electric Railway Company. Mrs. Stickel died from her injuries a short time after the accident. Plaintiffs Leo A. Flynn, Iona Talkington and Waneta Southerland were the adult children of Mrs. Stickel by a former marriage, and with her husband were her heirs at law, though her children were not dependent on her for any support.

The complaint sets forth three causes of action. In the first all the plaintiffs, as heirs at law of Mrs. Stickel, sought damages resulting from her death. The second sought damages suffered by Mr. Stickel as a result of his personal injuries. The third sought recovery by Mr. Stickel of moneys expended, and to be expended, in paying for hospital, physicians' and nurses bills and other such expenditures in treating the injuries of Mrs. Stickel and himself and in paying her funeral expenses.

Defendants deny negligence in the operation of the bus, denied the damages alleged, and alleged that the accident was proximately caused by the negligent operation of the Chevrolet pick-up truck by Mrs. Stickel and by her contributory negligence. In a supplemental answer defendants alleged contributory negligence of Mr. Stickel in riding with his wife as driver when he knew she was intoxicated to the point of being unable to operate the Chevrolet in a prudent manner, and while operating it in a careless and negligent manner due to her intoxication.

The jury returned a verdict in effect as follows: In favor of plaintiffs on the first cause of action ‘in the sum of $0___’; in favor of Harris Stickel on the second cause of action in the sum of $7500.; in favor of Harris Stickel on the third cause of action in the sum of $3000. Judgment was entered accordingly. Defendants' motions for judgment notwithstanding the verdict and for new trial were denied and this appeal followed.

The accident happened at about 10:40 o'clock P.M. on January 27, 1945, in the intersection of Twelfth Avenue and K Street in the city of San Diego. Both are public streets of the city, are 52 feet wide between curbs, and intersect at right angles. Twelfth Avenue runs north and south. It is a through street and is protected by stop signs on K street. The one at the northeast corner is set back about fifty feet from the property line of Twelfth Avenue and a white line is painted across the north half of K street forming an extension of the east property line of Twelfth Avenue. The word ‘STOP’ is painted on the K Street roadway about an equal distance between the white line and the stop sign. Both Mr. and Mrs. Stickel had driven on K street across the intersection many times so they were familiar with it.

The only witness for plaintiffs, describing the accident, was Mr. Stickel. He testified that he and his wife lived near Encanto about seven or eight miles easterly from the intersection; that neither he nor his wife had been in any bar on the day or evening of the accident and had not had anything to drink; that they left their home on the evening of January 27th and were on their way to get dinner in a San Diego cafe; that Mrs. Stickel was driving and he was sitting to her right with his body and head turned partly towards her; that as they proceeded west on K Street and approached Twelfth Avenue his wife stopped the car opposite the east curb line of Twelfth Avenue; that she looked to her right, shifted gears and proceeded into the intersection; that when the Chevrolet was nearly across the intersection he saw headlights in front of him; that the collision occurred and he was rendered unconscious and knew nothing more about the accident.

The only other evidence produced by plaintiffs as to the cause of the accident is found in the testimony of two police officers who investigated it. They both testified defendant Amos told each of them the first he knew of the impending collision was when glass from the windshield of the bus flew into his face; that he later told each of them that the Chevrolet did not make any stop before entering the intersection and when he realized it was coming through it was too late to stop the bus or avoid the collision although he did attempt to apply the brakes.

It is clear that the evidence of one of the officers as to these conversations was limited to Amos and was excluded as to the San Diego Electric Railway Company. The record is not so clear as to the testimony of the other officer. Part of his evidence was so limited, but other parts apparently were admitted without objection or limitation.

Evidently the Chevrolet was hit between the front of the right door and the right front wheel. The vehicles locked together with the right of the Chevrolet hooked to the left side of the bus which dragged it south on K Street to a point about 120 feet south of the intersection. Amos testified that the jar of the collision partly unseated him and threw his foot from the brake pedal; that as soon as he could regain his seat he got control of the bus and brought it to a stop. This was corroborated by another witness. The evidence indicates that the bus was not traveling at a speed of more than 25 miles an hour, probably between 22 and 24 miles an hour in entering the intersection which was in a business or residential district. The speed of the Chevrolet was variously estimated at between 6 and 35 miles per hour.

Two officers of the city of San Diego who arrived with the ambulance removed Mr. and Mrs. Stickel from the Chevrolet and took them to a hospital. They testified that Mr. Stickel was slumped on the seat behind the steering wheel of the left hand drive of the car with his head against the left door with Mrs. Stickel on the seat to his right; that they smelled alcohol on both of them. Mr. Stickel had no driver's license. The pleadings admit Mrs. Stickel was driving the car.

Passengers on the bus testified that they saw the Chevrolet approaching the intersection; that it made no stop but proceeded across Twelfth Avenue and into the bus or its path.

Many questions are argued in the briefs by both parties. Some of them are too technical to need notice. Others pertain to the judgment on the first cause of action from which no appeal was taken so they cannot affect our decision and need no attention here. Among them is the argument that Mr. and Mrs. Stickel were not married. As the pleadings admit they were husband and wife that question should not have been raised by defendants without amendments being made. The record does not show any request to amend the pleadings in that respect.

The main grounds for reversal of the order denying the motion for judgment notwithstanding the verdict and the judgment are these: (1) That the evidence failed to show any negligence of Amos, the driver of the bus; (2) that the sole cause of the accident was the negligence of Mrs. Stickel in failing to make the required stop before entering Twelfth Avenue, as required by Section 577 of the Vehicle Code, and in failing to yield the right of way to the bus which was the only vehicle approaching the intersection on a through highway and so close as to constitute an immediate hazard (Sec. 552 Vehicle Code); (3) that Mrs. Stickel was guilty of contributory negligence as a matter of fact; (4) that Mr. Stickel was guilty of contributory negligence in knowingly riding with a driver too intoxicated to operate a motor vehicle with any care, and in this connection the refusal to give a requested instruction on this subject; (5) the rejection of evidence offered by defendants; and (6) misconduct of counsel for plaintiffs.

It must be admitted that the evidence of negligence on the part of Amos is very meager. However, his admission to the officers that he did not see the Chevrolet until the glass from the windshield flew into his face might support the inference that he was not vigilant in looking for other vehicles on the highway which has been held to be negligence under some circumstances. The trial judge took this view of the case and we are not disposed to disturb that conclusion here especially as the record indicates that some of the evidence concerning those admissions was admitted against both defendants without objection. In making this statement we need not consider the question of whether or not that admission was part of the res gestae. The motion for judgment notwithstanding the verdict was not made by each defendant separately but by both jointly. For similar reasons it was properly denied.

Passengers on the bus testified that the Chevrolet did not make a boulevard stop before entering Twelfth Avenue. This was contradicted by the evidence of Mr. Stickel alone who was thoroughly impeached on other matters as will appear later. Had the jury concluded that the negligence of Mrs. Stickel was the sole proximate cause of the accident or that her negligence proximately contributed to it, a study of the record indicates that such a conclusion would have had the support of what seems to be a considerable preponderance of the evidence. The weight to be given evidence and the credibility of witnesses are matters for the trier of fact and not for an appellate court.

As we have pointed out the answer set up the special defense of the contributory negligence of Mr. Stickel in knowingly riding with his wife as driver when she was intoxicated to the point of being unable to properly operate a motor vehicle. That so riding with such a person may constitute independent negligence of a passenger that will bar his recovery is well established. In Lynn v. Goodwin, 170 Cal. 112, 148 P. 127, L.R.A.1915E, 588, it was said:

‘Metcalf's recklessness in driving was the direct, proximate and primary cause of the collision, and Metcalf when so driving and when the accident occurred was under the influence of liquor and was drunk. Plaintiff, his companion, knew this, and a reasonably prudent person would not have ridden in the automobile with Metcalf in his condition of inebriety. * * *

‘While it is true that in general the negligence of the driver of a vehicle is not imputable to a passenger so as to bar that passenger's right of recovery (Bresee v. Los Angeles Traction [Co.], 149 Cal. 131, 85 P. 152, 5 L.R.A., N.S., 1059), yet the conduct of the plaintiff in riding and in continuing to ride in an automobile when he must have known that the driver was intoxicated established independent negligence upon the plaintiff's part, apart from the driver's negligence barring the right of recovery.’ See also, Schneider v. Brecht, 6 Cal.App.2d 379, 44 P.2d 662; Reposa v. Pearce, 11 Cal.App.2d 517, 54 P.2d 475; Price v. Schroeder, 35 Cal.App.2d 700, 96 P.2d 949.

Mr. Stickel testified that neither he nor his wife had been in any bar nor had either of them consumed any intoxicants on the day or evening of the accident. The physician who attended them in the hospital at about midnight after the accident testified that he smelled no liquor on either of them.

On the other hand defendants produced several witnesses on the same subject. The evidence of the two officers who took Mr. and Mrs. Stickel to the hospital has been mentioned. H. V. Lindamood testified that he knew Mr. and Mrs. Stickel; that on January 27, 1945, he was in the Last Round-up Cafe in Encanto when Mr. and Mrs. Stickel came in about 9:30 P. M.; that Mrs. Stickel was intoxicated—drunk; that they went to their Chevrolet and asked him to go down town to get something to eat; that he declined and said to them, ‘I think we have all had enough. Why don't we go home’; that Mrs. Stickel was then drunk. Harry Walker testified that he was bar tender at the Last Round-up Cafe; that Mr. and Mrs. Stickel came in after nine and before ten o'clock on the evening of January 27, 1945, and both of them asked for drinks.

‘Q. What was the condition you observed Mrs. Stickel in when she entered the barroom? A. I would say it was intoxicated; that is why I refused them a drink.

‘Q. Describe her condition. What makes you think she was intoxicated? A. She was hilarious and in a happy frame of mind and a little bit on the staggering side, so I refused them a drink. That was the rules of the house out there.’

He further testified that Mrs. Stickel mixed with the customers, and then he instructed the waitress not to serve her any drinks. Leon Cesmat testified that he was a special officer on duty at the Last Round-up Cafe; that in January, 1945, he worked there Saturday and Sunday nights; that he knew Mr. and Mrs. Stickel. Concerning the condition of Mrs. Stickel in the Last Round-up Cafe on the evening of January 27, 1945, he testified as follows:

‘A. When I first saw her on this Saturday night I was busy. I was generally stand at the door, and I answer trouble in the house. I went to the back room where they had some trouble there and I squared that trouble up and Mrs. Stickel—Sandra, who runs the place told me that Mrs. Stickel, put her out.

‘Q. Now, what time was that? A. Around between 9:00 and 10:00 o'clock, as far as I can remember.

‘Q. Where did you see Mrs. Stickel? A. I seen her on the floor, talking to two sailors.

‘Q. Did she leave? A. She didn't leave until I told her to leave. I ordered her out of the house.

‘Q. And what was her condition? A. Well, she didn't say anything; she was just talking with them two sailors and went out; went out around the barroom and walked out.

‘Q. Had Mrs. Stickel been drinking? A. Yes, she was pretty well intoxicated.

‘Q. Is that why you asked her to leave? A. That is the reason I called her to leave.

‘Q. Did you see her leave? A. Yes, sir. I escorted her out the door.’

Sandra Slayton testified that she was manager and part owner of the Last Round-up Cafe; that she knew Mr. and Mrs. Stickel; that they were in the cafe on one Saturday night in January, 1945, which was the night prior to the Sunday she learned they had been injured in an automobile accident; that she saw them about 9:30 o'clock and had them put out about 10 P. M.; that Mrs. Stickel was intoxicated but that Mr. Stickel ‘wasn't so bad * * * He was drinking’; that Mrs. Stickel walked from table to table picking up drinks and drinking them; that she asked Mrs. Stickel to leave and that she became very abusive and the doorman put her out.

These witnesses, except Mrs. Slayton, were subjected to severe cross-examination as to how they fixed the date of January 27, 1945, as the night that Mr. and Mrs. Stickel were in the Last Round-up Cafe. While they could not be positive on the date being January 27, they were all clear that they heard on Sunday morning that Mr. and Mrs. Stickel had been injured in an automobile accident the night before and that it was that Saturday night between 9:00 and 10:00 o'clock P. M. that the couple had been in the Last Round-up Cafe.

Defendants proposed the following instruction which the trial court refused to give:

‘If you find that at the time and place of the accident the deceased, Essie Stickel, was then and there under the influence of intoxicating liquor to such an extent as to prevent her from exercising the care and caution in the operation of her automobile which she, as a sober and ordinarily prudent person would have exercised under the same or similar circumstances, and the alcoholic liquor which she had been drinking had then and there so far affected her nervous system, brain and muscles as to impair, to an appreciable degree, her ability to operate the vehicle in the manner that she, as an ordinarily prudence person in the full possession of her faculties would have operated and driven the automobile had she not been so under the influence of intoxicating liquors, and if you should find that such intoxication of the deceased, Essie Stickel, contributed in any degree, as a proximate cause of the accident, then and in such event, if you further find that the plaintiff, Harris Stickel, who was riding in the automobile with his wife, Essie Stickel, had actual knowledge or must have known of the intoxicated condition of his wife, Essie Stickel, you are instructed that the plaintiff, Harris Stickel, was guilty of contributory negligence and cannot recover from the defendant.’

No other instruction was given covering this subject. The usual instructions on contributory negligence did not do so and they were chiefly directed at the contributory negligence of Essie Stickel. It is clear that the question of the negligence or the contributory negligence of Mr. Stickel in knowingly riding with his intoxicated wife as driver was one of the principal defenses of defendants. They were entitled to have the jury instructed on this subject and it was error to refuse the requested instruction.

Mr. Stickel was impeached by proof that he had been convicted of felonies twice, once in Ohio and once in San Diego under the name of Ralph West. He admitted that he had used various names over a period of years and was known as Ralph West in Encanto.

Defendants, as further impeachment of Mr. Stickel, offered to prove that on specified occasions he had been convicted in San Diego of drunkenness, drunk and disorderly conduct, and drunk driving. The offer was made to sustain the contention that Mr. Stickel was an inebriate and an habitual drunkard. It was not made as bearing on the value of the loss of the society of his wife nor upon the life expectancy of one habitually over indulging in intoxicating liquors. The fact that Mr. Stickel had been convicted of four misdemeanors involving drunkenness in the period of eleven years prior to the accident were properly excluded as not bearing on his sobriety on the evening of January 27, 1945.

The alleged misconduct of counsel for plaintiff occurred during the cross-examination of defendants' witness Lindamood. It was vigorous to say the least. The really objectionable part of this cross-examination seemed to be for the purpose of laying the foundation for impeachment. The witness had testified that he was in the Last Round-up Cafe on the Sunday following the accident which happened on Saturday night, January 27, 1945. Counsel asked him if he did not know that the cafe was closed on Sundays during the latter part of January, 1945; if he did not know it was closed for repairs or remodeling during the latter part of January and the early part of February, 1945, and other questions of like import to which the witness returned negative answers. Plaintiff introduced no evidence tending to support the implications in the questions. Counsel should not ask such questions unless he in good faith believes he can follow them up with competent evidence supporting the implications contained therein. However, we can see no great prejudice in this conduct as defendants were able to establish by witnesses, including Sandra Slayton, part owner and manager, that the Cafe was open for business on Sunday, January 28, 1945, and every other Sunday during that January and also the early part of the following February.

In view of the evidence before the jury which discloses a very close case on the negligence of Amos, and the negligence or contributory negligence of both Mr. and Mrs. Stickel, we cannot regard lightly the refusal to give the requested instruction on the contributory negligence of Mr. Stickel in riding with his intoxicated wife as driver. This resulted in the failure to instruct the jury on a principal defense which was supported by very substantial evidence. Under such circumstances we must regard the error as prejudicial and not as cured by Section 4 1/212 of Article VI of the Constitution.

Defendants disclaim any intention of appealing from the verdict of the jury, from which no appeal lies. Sec. 963, Code Civil Procedure. The notice of appeal is before us with such an appeal indicated.

The attempted appeal from the verdict is dismissed. The order denying the motion for judgment notwithstanding the verdict is affirmed. The portions of the judgment in favor of Harris Stickel on the second and third causes of action are reversed. Appellants will recover costs of appeal.

MARKS, Justice.

BARNARD, P. J., and GRIFFIN, J., concur.