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District Court of Appeal, Fourth District, California.

COBARRUBIA et al. v. BUCHANAN et al.*

Civ. 4048.

Decided: June 13, 1950

John D. Chinello, Fresno, for appellants. John Said, Fresno, for respondents.

Plaintiffs, as surviving children of Fernando Rodriguez, deceased brought this action for wrongful death of their father. His death was ascribed to the negligence of defendant Roy Buchanan in driving a Chevrolet pick-up truck owned by defendant Robert F. Brown, which collided with a Ford pick-up truck owned and driven by one Frank Hernandez. The decedent was riding in the rear of the Ford truck with other workmen. The answer of defendants sets up six claimed affirmative defenses: (1) unavoidable accident; (2) contributory negligence of Hernandez imputable to decedent under the doctrine of respondeat superior; (3) contributory negligence of Hernandez imputable to decedent under the doctrine of joint venture or enterprise; (4) contributory negligence of decedent in riding in the truck operated by Hernandez; (5) contributory negligence of decedent in knowingly and negligently riding in a negligently operated truck; and (6) assumption of risk by decedent.

The jury returned a verdict in favor of defendants. Plaintiffs appealed.

The accident occurred on Kearney Boulevard at Grant Avenue in Fresno. Kearney Boulevard is an east-west highway. The center area is planted to trees and is referred to in the record as the ‘tree lane.’ North of the tree lane the highway is for the use of trucks and is referred to in the record as the ‘truck line’. The paved roadway thereof is about 10 feet wide with abutting shoulders 3 to 6 feet wide. Eastbound trucks used the south half of the truck lane and westbound trucks used the north half thereof. South of the tree lane the highway is for the use of vehicles other than trucks and is referred to in the record as the ‘boulevard lane’ and the paved roadway is about 10 feet wide with abutting shoulders. Grant Avenue is a north-south highway. It intersects the north line of Kearney Boulevard and crosses the truck lane, the tree lane through a break therein, and the boulevard lane to, but not beyond the south line of Kearney Boulevard, forming a ‘T’ intersection. There are no stop signs at that intersection. Fig trees planted on the property adjacent to the northeast corner of the intersection render the intersection a blind one for approaching westbound traffic in the truck lane. The thick growth of eucalyptus and other trees in the tree lane render the intersection a blind one for northbound traffic on Grant Avenue approaching the truck lane. Buchanan drove the Chevrolet easterly in the boulevard lane, gave a signal for a left turn at Grant Avenue, crossed the tree lane, and as he was about to cross the truck lane he collided with the Ford Truck which was proceeding westerly in the truck lane. Each driver gave his version of the facts surrounding the accident and each blamed the other. It is obvious, from the evidence, that it was sufficient to support a finding of negligence as to defendant Buchanan and that such negligence was the sole proximate cause of the accident, or that Hernandez, the driver of the Ford, was negligent and that his negligence was the sole proximate cause of the accident, or that the concurring negligence of both drivers was the proximate cause of the accident.

The evidence bearing on the status of decedent as an occupant of the Ford truck may be thus summarized. Decedent had worked for Hernandez at a ranch for about 2 weeks before the accident and during that period he rode to work in the Ford driven by Hernandez in substantially the same manner, and over the same route as he did on this particular date. The testimony was that decedent did not tell Hernandez how to drive nor did he complain or have reason to complain about the way Hernandez drove.

Plaintiffs contend that there was no sufficient evidence that deceased was guilty of contributory negligence, or that the negligence of Hernandez, if any, was imputable to the deceased or that he assumed the risk of the injury or that the accident was unavoidable and that therefore the trial court prejudicially erred in giving instructions on these questions and submitting these issues to the jury. Instructions on contributory negligence, requested by defendants, were given in the ordinary form and included the statement: ‘The rider in a vehicle being driven by another has the duty to exercise ordinary care for his own safety. Ordinary care may require of the driver that he protest against obvious negligence of the driver if he has a reasonable opportunity to do so.’

In this connection it is particularly contended that there was no evidence to support a reasonable inference that negligence, if any, on the part of Hernandez, was obvious to the decedent, or, if obvious, that decedent had reasonable or any opportunity to protest or that anything decedent did or omitted to do contributed proximately to the accident, citing Edwards v. Freeman, 34 Cal.2d 589, 212 P.2d 883. In connection with these instructions defendants also offered and the court gave an instruction, which plaintiffs claim to be erroneous, that if the jury found that the Ford truck in which the decedent was riding ‘was being operated at and immediately prior to the collision at an excessive rate of speed, and that such excessive speed was a proximate cause of the collision’, and if they further found that decedent ‘knew of and consented to such excessive speed, then the plaintiffs may not recover, although you also find that the defendant, Roy Buchanan, operated the Chevrolet pick-up in a negligent manner.’ It is also argued that this instruction was wholly without evidentiary support and that it permitted the jury to impute negligence of Hernandez to the decedent and that it was therefore prejudicial error to give it. This was followed by an additional instruction on assumption of risk which stated in effect that if Rodriguez knew that the Ford truck was being operated at a dangerous and excessive rate of speed and he consented thereto, he is deemed in law to have assumed all risks incurred by reason of such excessive speed. Then follows in instruction offered by defendants and given by the court on unavoidable accident, stating that plaintiffs could not recover if the accident was unavoidable.

The only evidence pointed to by defendants, which in any way supports these instructions, is that Rodriguez had been riding in the rear of the open truck which was surrounded by side-boards about three feet high. There was evidence that the deceased was seated in the truck somewhere behind the cab and that he had been thus riding with Hernandez, past this intersection, almost daily for two weeks without making any complaint or protest as to the manner of his deiving. It is defendants' argument that since there was testimony by defendant, who was called under section 2055 of the Code of Civil Procedure, that Hernandez was then driving between 45 and 55 miles per hour and since he admitted driving from 25 to 35 miles per hour and slowing down at the intersection, and since he admitted traveling at about that same rate of speed each time he passed that intersection, the jury had the right to believe that Hernandez had been driving past that particular intersection for the two weeks prior thereto at 45 to 55 miles per hour and that since Rodriguez never protested then or on prior occasions about traveling at such a speed at that intersection, his failure to protest under the circumstances constituted evidence of contributory negligence on his part. Although Hernandez testified that the brakes on his Ford truck were in ‘good condition’, both before and after the accident, there was some evidence of an intermittent skid mark by one of the tires of the Ford truck but no skid marks from the other three tires. Based on this evidence defendants argue that the brakes must have been defective. Assuming this evidence to be true, there was no evidence showing that deceased had knowledge of any such defective condition of the brakes, either before or on the day of the accident. The law did not charge decedent with the duty of investigating the condition of the brakes before accepting a ride in the truck. Yates v. Brazelton, 108 Cal.App. 533, 291 P. 695. Likewise, there is no evidence that the deceased ever drove an automobile or that he was familiar with or could judge the speed of cars or had any opportunity to do so on this occasion. He was not sitting in the front seat with the driver and observing the speedometer or roadway. The facts are much different from the facts considered in Matsumoto v. Renner, 90 Cal.App.2d 406, 202 P.2d 1051, and Boyson v. Porter, 10 Cal.App.2d 431, 52 P.2d 582, relied upon the defendants. Here, deceased was riding some place in the truck behind the cab, and, so far as the record discloses, he was not making any observation of the road, the speed of the truck, or the approach of any vehicle, and judging from the height of the sideboards and cab, he may not have been able to see the roadway or the intersection. The evidence produced falls far short of showing competent evidence sufficient to justify a jury in holding that deceased was guilty of contributory negligence. The burden of proving contributory negligence of decedent was upon the defendants. Anthony v. Hobbie, 25 Cal.2d 814, 818, 155 P.2d 826. Under this authority the state of the evidence entitled plaintiffs to the benefit of the presumption that the decedent was not guilty of contributory negligence. There was no evidence in the case contrary to the presumption. There was no evidence to support a reasonable inference that negligence, if any, on the part of Hernandez, was obvious to the decedent or, if obvious, that the decedent had reasonable or any opportunity to protest. In fact, there was no evidence in the case to support a reasonable inference that anything the decedent did or omitted to do contributed proximately to the accident. The giving of defendants' instructions on contributory negligence, imputed negligence and assumption of risk, was unwarranted by the evidence and was error.

In Edwards v. Freeman, supra, the passenger was in the back seat combing her hair. Her son was driving the car and an accident occurred. In an action by the mother against the driver of the other car, for damages, that driver claimed contributory negligence on the part of the plaintiff and the court, in effect, instructed the jury that there was no sufficient evidence of contributory negligence on her part. On appeal the trial court's ruling was sustained. See, also, Crawford v. Rose, 2 Cal.App.2d 734, 737–738, 39 P.2d 217; Binford v. Purcell, 2 Cal.App.2d 87, 91, 37 P.2d 732; Fugelsang v. Steiner, 115 Cal.App. 167, 174–175, 1 P.2d 553; Hedding v. Pearson, 76 Cal.App.2d 481, 173 P.2d 382; Oettinger v. Stewart, 24 Cal.2d 133, 139, 148 P.2d 19, 156 A.L.R. 1221; Queirolo v. Pacific Gas & Electric Co., 114 Cal.App. 610, 615–616, 300 P. 487; Swink v. Gardena Club, 65 Cal.App.2d 674, 680–681, 151 P.2d 313; Dowd v. Atlas Taxicab and Auto Service Co., 187 Cal. 523, 202 P. 870; Lowe v. Lee, 95 Cal.App.2d 685, 213 P.2d 767.

However, in this action, in connection with the contributory negligence and imputed negligence instructions offered by defendants and given, plaintiffs also offered an instruction on the same subject. It reads in part: ‘A passenger or guest in an automobile of another who neither exercises nor has the right to exercise any control over the conduct of the driver, does not become responsible for the negligence of the driver, nor can the negligence of the driver of the automobile be imputed to him. A passenger or guest under such circumstances is only responsible for his own negligence, if any, in not exercising such care for his own safety as a reasonably careful and prudent person would exercise under the same or similar circumstance.’

It is contended by defendants that since plaintiffs offered instructions on these subjects they are estopped from urging error in the submission of these questions to the jury.

There is authority for this general proposition of law. Collins v. Graves, 1936, 17 Cal.App.2d 288, 61 P.2d 1198; Ray v. Kennedy, 1938, 24 Cal.App.2d 583, 76 P.2d 147; Gray v. Ellis, 1913, 164 Cal. 481, 486, 129 P. 791; Eubanks v. Milton G. Cooper & Sons, Inc., 1945, 68 Cal.App.2d 366, 373, 156 P.2d 775; Cedzo v. Bergen, 1942, 53 Cal.App.2d 667, 128 P. 683. However, defendants offered and the court gave an instruction on the question of unavoidable accident. Plaintiffs offered no instruction on this question, therefore they would not be bound by the estoppel rule in this respect.

The evidence clearly shows that the accident was the result of the negligence of defendants or of Hernandez or both. There was no evidence that the accident was unavoidable.

In Hyman v. Market Street Ry. Co., 41 Cal.App.2d 647, 107 P.2d 485, the vice of giving such an instruction, where there was no evidence supporting it, is discussed. In that case a passenger was injured as the result of a collision of two street cars. There it was held that the giving of such an instruction, under the facts of that case, was both error and prejudicial, where there was no evidence, direct or indirect, that the collision was the result of such an accident. See, also, Scandalis v. Jenny, 132 Cal.App. 307, 22 P.2d 545.

Respondents rely upon the general statement in Stevenson v. Fleming, 47 Cal.App.2d 225, 117 P.2d 717, and Matsumoto v. Renner, 90 Cal.App.2d 406, 202 P.2d 1051, to the effect that where negligence and contributory negligence or unavoidable accident are raised by the pleadings, defendants are entitled to have the jury instructed as to this theory of the case, but in addition to this general rule there should be added the statement that to warrant the giving of such an instruction there must be sufficient evidence upon which the jury could make such a finding. See, D'Avanzo v. Manno, 16 Cal.App.2d 346, 60 P.2d 524, and 24 Cal.Jur. p. 805, sec. 78, where it is said: ‘Even though a request is pertinent to an issue presented by the pleadings, refusal of it is proper if such issue is wholly unsupported by the evidence. In fact, the refusal of requests in such cases is not only proper, but their allowance, constitutes error which, if prejudicial, warrants a reversal.’ See, also, Scandalis v. Jenny, supra; Sills v. Forbes, 33 Cal.App.2d 219, 91 P.2d 246; Kinnear v. Martinelli, 84 Cal.App. 721, 258 P. 686; 24 Cal.Jur. pp. 827–828, sec. 93; 10 Cal.Jur. Ten-Year Supp. p. 701, sec. 95; 3 Cal.Jur. p. 855, sec. 86.

Under the facts of the instant case we reach the conclusion that the jury might well have been misled and that prejudicial error resulted.

Judgment reversed.

GRIFFIN, Justice.

BARNARD, P. J., and MUSSELL, J., concur.

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