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District Court of Appeal, Fourth District, California.


Civ. 3770.

Decided: May 05, 1949

C. Ray Robinson and Margaret A. Flynn, both of Merced, and Lucius Powers, Jr., of Fresno, for appellant. Dearing, Jertberg & Avery, of Fresno, for respondent.

This is an action for damages for personal injuries sustained in an automobile accident.

Plaintiff was riding in the rear seat of an automobile, owned and being driven by her son, Ray Edwards, when it collided with a Ford pick-up, being driven by the defendant in a southerly direction on a north to south highway known as Marks Avenue. Ray Edwards was driving in an easterly direction on Manning Avenue, an east to west highway, and when crossing Manning Avenue at a point in the intersection approximately on the center line of Marks Avenue and about 21/212 feet south of the center line of Manning Avenue, the left front of defendant's pick-up came into contact with the left rear fender and bumper of the Edwards car as it passed through the intersection. This contact between the vehicles caused Ray Edwards to lose control of his car which careened diagonally across Manning Avenue and struck a telephone pole north of Manning Avenue at approximately 134 feet from the point of impact, resulting in the injuries to plaintiff. The accident happened at about 8:15 A.M. on October 8, 1947. The weather was clear and the highway dry.

Plaintiff's motion for a directed verdict was denied and the jury returned a verdict in favor of defendant. Plaintiff then presented motions for judgment notwithstanding the verdict and for a new trial, both of which were denied, and this appeal followed.

Plaintiff's contentions are that the evidence does not support the verdict and that the instructions were erroneous, misleading and prejudicial as to contributory negligence, agency and imputed negligence.

The evidence, considered in the light most favorable to respondent, shows that defendant, prior to the accident, was driving at a speed of 25 to 30 miles per hour at a point approximately 200 feet north of Manning Avenue, and from that point had gradually reduced his speed until at the northerly edge of Manning Avenue he was driving at about 15 to 20 miles per hour; that when 200 feet north of Manning Avenue he looked to his right for vehicles approaching on Manning from the west, saw none, and continued to look in that direction until he reached a point 80 feet north of the intersection; that his view on Manning Avenue was unobstructed for a distance of approximately 400 to 500 feet as he traveled to within 80 feet of the intersection, and at that point there were no vehicles approaching on Manning Avenue from the west; that when 80 feet from the intersection he looked to the east for vehicles approaching from that direction on Manning and continued to look in that direction until he had reached the northern edge of Manning Avenue when he again looked to the west and saw the Edwards car at a point on Manning Avenue approximately 60 feet west of Marks Avenue approaching the intersection at a speed of about 60 miles per hour; that defendant acted to apply his brakes to avoid the collision but in less than one second the Edwards car, at high speed, came into and across the intersection in front of defendant and as it passed, struck defendant's car.

Ray Edwards testified that when he was approximately 90 feet west of the intersection, defendant's Ford pick-up was then about 150 feet north of the intersection and being driven at a speed of 35 to 45 miles per hour; that he then drove on until his car was “probably” in the intersection at which time the defendant's pick-up was approximately 20 feet from the intersection and that at that time he saw defendant's car speed up. Edwards further testified that he then pulled his car to the right, speeded up and had gotten the back end of his car past the center of the intersection when defendant's car hit the left rear wheel fender and bumper of his car.

A highway patrol officer testified that at about 10 A.M. on the morning of the accident Ray Edwards stated to him that “he never saw the Ford pick-up prior to its collision with the Ford that he was driving there at Manning and Marks Avenue.” Edwards in his testimony denied having made such a statement.

While there is a conflict in the evidence the jury was entitled to believe the testimony of defendant and to find that the accident was caused solely and proximately by the negligence of Ray Edwards and that there was no negligence on the part of defendant. Hicks v. Reis, 21 Cal.2d 654, 659, 660, 134 P.2d 788; Nichols v. Mitchell, 32 Cal.2d 598, 606, 197 P.2d 550. The evidence was sufficient to support findings by the jury that defendant's pick-up had entered the intersection while the Edwards car was still approaching it and that the Edwards car was at least 400 feet from the intersection when defendant was 80 feet north of Manning Avenue. These were questions of fact for the jury to decide and their findings in this respect would not be disturbed on appeal but for the errors in the court's instructions noted herein.

The asserted errors in the instructions to the jury are in connection with the question as to whether the negligence of Ray Edwards could be imputed to plaintiff.

The evidence indicates that Ray Edwards lived about a half mile from his mother; that he went to her home the day before the accident and while there she asked him if he would “be dropping into town sometime” and that the next time he was going “she would like to go in and have her eyes tested;” that he said, “Well,—going in next morning to have my arm undressed;” that on the morning of the accident he picked his mother up at her home and was bringing her into town to get some glasses when the accident happened. Plaintiff testified in this connection as follows: “Q. Why were you going to town? A. I was coming to make an appointment to have my eyes tested to get some eye glasses. Q. When did you determine to do that? A. Oh, I been intending to do that quite a while. The day before, the day before I came I seen the boy and asked him was he going; when he was aiming to come into town again. I told him whenever he come I wanted to come with him. He says, ‘Well, I am going tomorrow’,—to make an appointment for my glasses.”

Ray Edwards testified that when he had a conversation at the hospital with a traffic officer at 10 A.M. on the morning of the accident, the doctor had taken the bandage off his arm (which had been injured previously), and later he stated that the arm was still bandaged at the time the officer talked to him. Defendant testified that the day following the accident the arm was still bandaged.

There is no testimony that plaintiff said anything to Edwards about where he should go in town or as to how he should operate the car and at the time of the accident she was sitting in the rear seat combing her hair.

The trial court instructed the jury that “if you find from the evidence that Jodie Ray Edwards was guilty of negligence in the operation of the automobile, then and there being driven by him, and you find that such negligence should be imputed to the plaintiff, and that this negligence, if any, contributed in the slightest degree to the happening of the accident, then I charge you that your verdict must be against the plaintiff and in favor of the defendant.” Elsewhere in the instructions the jury was instructed as follows: “As a matter of law there is no evidence in the case of any contributory negligence individually upon the part of the plaintiff, Eloney Edwards, herself, as distinguished from any imputed negligence of Ray Edwards, if any,” and that “the defendant having alleged contributory negligence, must prove it by a preponderance of the evidence before you may find it to be true” and “in determining whether negligence, or proximate cause, or contributory negligence has been proved by a preponderance of the evidence, you should consider all the evidence bearing either way upon the question.” In another instruction the jury was told that “if you believe from the evidence that the auto trip being made by Mrs. Edwards and her son was being made on the business of Mrs. Edwards, at her instance and request and for her benefit, so that she would have some control over where and how the car was being driven, then Ray Edwards was her agent to the extent that if Ray Edwards was negligent and such negligence contributed proximately to the accident here in question, such negligence may be imputed to her and would prevent her from recovering.”

To justify the foregoing instructions to the jury it was necessary that there be evidence upon which the jury could find that plaintiff had control, or the right of control of the operation of the car in which she was riding. As was said in Morrissey v. Kirkelie, 5 Cal.App.2d 183, at page 184, 42 P.2d 361: “The negligence of an automobile driver is not to be imputed to a passenger who has no control over the car in fact, and who does not bear such a relation to the use of the vehicle as to warrant the assumption that he is jointly engaged with the driver in the operation thereof. The fact that they have a common purpose in making the trip is not, alone, sufficient. It is unnecessary to discuss the authorities further than to say that they uniformly adhere to this rule. (Citing cases.)” This rule was approved by this court in Morrison v. Jose, 57 Cal.App.2d 795, 135 P.2d 586.

In Campagna v. Market St. Ry. Co., 24 Cal.2d 304, 149 P.2d 281, 283, it was held to be prejudicial error for the court to instruct the jury concerning the principles relating to the doctrine of imputed negligence where there was no evidence that at the time of the accident the plaintiff had control, or right to control the truck in which he was riding. The court there said: “The doctrine of imputed negligence is not to be loosely applied, and ‘where there is nothing in common between the passenger and driver of the vehicle except a common destination and a common purpose in going there the negligence of the driver is not to be imputed to the passenger.’ Wessling v. Southern Pac. Co., 116 Cal.App. 455, 458, 3 P.2d 25, 26. The passenger must do more than to indicate the route to be traveled, and a certain plan in common is not sufficient to establish the relationship. Pope v. Halpern, supra [193 Cal. 168, 223 P. 470]. Neither family relationship between the parties, nor association together in business, is determinative of the question. Bryant v. Pacific Elec. Ry. Co., supra [174 Cal. 737, 164 P. 385]; Moore v. Franchetti, 22 Cal.App.2d 75, 70 P.2d 492. And as the imputation of contributory negligence is an affirmative defense, the defendant has the burden of proof upon that issue. Bennett v. Chanslor & Lyon Co., supra [204 Cal. 101, 266 P. 803]; Huber v. Scott, 122 Cal.App. 334, 10 P.2d 150.”

In the present case there is no evidence that plaintiff did control, or had the right to control the car in which she was riding. She did not say or do anything with respect to the operation of the automobile other than to request her son to stop and pick her up when he went to town. Under such circumstances it must be held, as a matter of law, that no agency relationship existed and that any negligence upon the part of Ray Edwards could not be imputed to plaintiff. The instructions to the jury that they might find that an agency relationship existed between plaintiff and her son, and that any negligence upon his part was imputable to her, were prejudicially erroneous and require a reversal of the judgment.

Judgment reversed.

MUSSELL, Justice.

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