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District Court of Appeal, First District, Division 1, California.

ROY v. MISSION TAXI CO., Inc., et al.* (two cases).

Nos. 14034, 14207.

Decided: June 26, 1950

Robert H. Gerdes, John J. Briare, Frederick T. Searls, all of San Francisco, Campbell, Hayes & Custer, San Jose, for appellant Pacific Gas & Electric Co. Hoge, Pelton & Gunther, San Francisco (Leo V. Killion, Reginald M. Watt, San Francisco, of counsel), for appellant Mission Taxi Company. James F. Boccardo, San Jose, for respondent.

Elsie I. Roy brought an action to recover damages for personal injuries received by her in a collision between a taxi of the Mission Taxi Company, Inc., in which she was a passenger, and a truck of the Pacific Gas and Electric Company, Inc. (hereinafer referred to as P. G. & E.), operated by one of its employees. The jury before whom the case was tried rendered a verdict for $25,000 for plaintiff against both defendants. Each defendant made a motion for a new trial, which motions were denied by the court. Each defendant has appealed from the judgment against it in accordance with said verdict. The appeal in No. 14,034 contains the entire record on appeal, including a full reporter's transcript. Appeal No. 14,207 is taken on a settled statement. In accordance with settled practice, on both appeals we will take the facts from the reporter's transcript, and not from the settled statement.

Each defendant questions the sufficiency of the evidence to show that any negligence on the part of its employee was a proximate cause of the injuries to plaintiff, each defendant contending that the negligence of the other was the sole proximate cause of the collision.

Before an appellate tribunal is justified in reversing a judgment upon the ground of the insufficiency of the evidence, it must appear from the record that, accepting the full force of the evidence adduced, together with every inference favorable to the prevailing party which may reasonably be drawn therefrom, it still appears that the law precludes the prevailing party from recovering a judgment. The evidence must be construed most strongly against the party against whom the judgment is rendered. Every favorable inference which may fairly be deduced from the evidence should be resolved in favor of the prevailing party. The prevailing party's evidence must ordinarily be accepted as true and evidence which contradicts it must be disregarded. Bearing in mind this familiar rule, we shall give a brief summary of the evidence as shown by the reporter's transcript.

At about 4:30 p. m. on March 26, 1947, the plaintiff, Elsie I. Roy, was riding as a fare-paying passenger on the right-hand side of the rear seat of a taxi owned by the Mission Taxi Company and being driven by its employee in an easterly direction on Santa Clara Street (also called The Alameda) in San Jose. This street has a center dividing line with three lanes in addition to the parking lane on the south half and is protected by arterial stop signs at cross streets. One of such cross streets is Montgomery Street, which runs approximately north and south and at right angles with Santa Clara Street. As the taxi approached the intersection with Montgomery Street, a truck belonging to the P. G. & E. was being driven north along Montgomery Street by a P. G. & E. employee. There is a conflict in the evidence as to whether the truck stopped at the arterial stop sign before entering this intersection, but after it did enter there is evidence to show that it proceeded very slowly—three or four miles per hour,—hesitated, and then started to make a left turn in order to go west on Santa Clara Street. The streets were dry and level and the day was clear. The taxi struck the left rear wheel of the truck with the left front side of the taxi, and the plaintiff was injured when the sudden stop of the taxi threw her forward over the front seat and through the windshield.

Evidence from which a jury might find the P. G. & E. truck driver negligent and such negligence a proximate cause of the accident is found in the testimony of the taxi driver. He testified that he was approximately 150 feet west of the intersection when he first saw the truck; that at that time the truck was just cruising (one to two miles per hour) over the stop sign line on Montgomery Street; that he at no time saw the truck stop (but he had not seen the truck at the time it was behind the stop sign line); that the truck almost came to a stop just across the pedestrian line, and that he put on his brakes when he first saw the truck, but when he saw that the truck was about to stop, ‘I stepped on [it], increased my speed * * * And in the meantime is when he come to almost a stop, he gassed it, in other words he stepped on it, and made a left-hand turn right into me.’ The truck driver made no turning signal that the taxi driver saw. The taxi driver testified that he was going 25 to 30 miles an hour when he first saw the truck and applied his brakes. Such erratic behavior of the truck driver at an intersection with an arterial street with traffic which was testified to as being heavy and the making of a left-hand turn without signaling would be some evidence from which negligence could be found by the jury. The defendant taxi company calls attention to section 552 of the Vehicle Code which provides that one entering a through highway ‘shall yield the right of way to other vehicles * * * which are approaching so closely on the through highway as to constitute an immediate hazard,’ and contends that the taxi driver had a right to believe that the truck would obey the law and yield the right of way, particularly if the truck driver thought, as he testified, that the taxi was going from 45 to 50 miles per hour.

Evidence from which a jury could find the taxi driver negligent is found in the testimony of a bystander, Mr. Deutsch, as to the speed of the taxi before the collision. He stated that at the time just before the accident he gained the opinion that it was going at least 50 miles per hour. Also, since the truck had already entered the intersection at the time the taxi was 150 feet from it and was well able to stop within such distance, there is evidence that the taxi driver was negligent in violating a right of way.

Each defendant argues to this court that the evidence is insufficient, as a matter of law, to justify a judgment against such defendant. However, we are not impressed with these arguments because, as we view the record, we are convinced that there was ample evidence to justify the jury in impliedly finding, as it did, that both defendants were negligent and that their negligence concurred in proximately causing the injuries to plaintiff. We believe there was ample evidence to justify the conclusion that the driver of the taxicab in traveling at a speed of 45 to 50 miles an hour at said time and place was not exercising the degree of care that a carrier of passengers for hire should exercise. We believe also that there was ample evidence to justify the conclusion that the driver of the northbound truck was negligent in proceeding into a through highway, when, according to his own testimony, he observed the taxicab 200 feet away traveling at a speed of 45 to 50 miles an hour. We deem it unnecessary to discuss further the contentions of defendants as to the insufficiency of the evidence, because, although they might well be urged in arguing the case to the jury in the first instance, and then to the trial court upon a motion for new trial, they have little merit before an appellate tribunal upon the record in the instant case. The argument of each defendant pointing out evidence to show that the negligence of the other defendant proximately caused plaintiff's injuries serves to show the conflict in the testimony, which it was the duty of the jury to resolve.

Defendant P. G. & E. contends that the court committed reversible error in refusing to give instruction No. 67 offered by it, which reads as follows: ‘You are instructed that a person, who in driving on a roadway with ordinary care, suddenly and unexpectedly is confronted with imminent peril brought about by the negligence of another, is not bound to use that degree of care which a person of ordinary prudence in calmer moments would use; and under such circumstances if Mr. Liles, the driver of the P. G. & E. truck attempted to speed up and get out of the way of the Mission Cab, or took the wrong course solely by reason of the imminent peril created by the driver of the Mission Cab, the P. G. & E. could not be held responsible in so doing, if a person of ordinary prudence, under the pressure of the same emergency, might have done the same thing. In other words, the law in this respect is simply plain common sense. You must judge the driver of the P. G. & E. truck in the light of what would be reasonable and proper under the particular circumstances of this case. any person can determine how an accident might have been avoided after it has happened. The law does not require the driver of the P. G. & E. truck to anticipate that there is going to be an accident or to act with the utmost wisdom upon being confronted with an imminent peril. He is charged with his foresight rather than his hindsight and he cannot be held responsible for failure to take precautions against the unexpected negligence of Butler, the driver of the Mission Cab, nor is he required to act in an emergency, or in the excitement of an imminent peril created by the driver of the cab, with the same judgment that would be expected of him in the absence of such peril so created.’

No other instruction was given on the subject and we agree with said defendant that a party is entitled to proper instructions as to the law applicable to every material issue of fact when there is some evidence to support his theory of the case. Under the evidence in the case, defendant P. G. & E. was entitled to a proper instruction on the subject of imminent peril, and had a proper instruction been offered we would be inclined to hold that it would be error to refuse to give it. However, the offered instruction is objectionable for many reasons and was properly refused by the court. In at least two places it is clearly calculated to inform the jury that imminent peril was created by the driver of the taxicab and thus invades the province of the jury. It is a type of argumentative and formula instruction which often has been criticised by our appellate courts. A jury should be instructed in concise and understandable language as to the principles of law applicable under the evidence to the case on trial. Argumentative and formula instructions are objectionable because they emphasize certain portions of the testimony, and coming from the court may serve to confuse and mislead the jury. As was said in Estate of Clark, 180 Cal. 395, at pages 398–399, 181 P. 639, at page 641: ‘But it is not the province of the court to make an argument to the jury, and though the giving of an instruction argumentative in form may not always be cause for reversal, it is also true that the court is not bound to give such an instruction even if the argument be a legitimate one, and the refusal thereof is not error. [Citing cases.]’ And as this court said in Taha v. Finegold, 81 Cal.App.2d 536, at page 543, 184 P.2d 533, at page 536: ‘Formula instructions should not be given. As said in Tice v. Pacific Elec. Ry. Co., 36 Cal.App.2d 66, 71, 96 P.2d 1022, 1024, 97 P.2d 844, formula instructions ‘are not calculated best to serve most successfully [the] administration of justice. Their final disappearance will improve the conduct of court trials.’ While the giving of formula instructions is not in itself prejudicial error, the giving of them here added to the other circumstances of the case, combined to deny the plaintiff a fair trial.' The prevalent practice of seeking to argue a case in instructions should be discouraged and we have no doubt that if said defendant had offered an instructing giving the law as to imminent peril, as approved by the decisions of our courts, it would have been given by the trial court.

Nor was it reversible error for the trial court to fail to modify or reframe the proposed instruction, for the reason as stated by our Supreme Court in Nelson v. Southern Pacific Co., 8 Cal.2d 648, at page 653, 67 P.2d 682, at page 685: ‘It is next complained that the court did not instruct that jury at all upon the duty of the defendant company to give warning as the train approached the crossing. It is conceded that the instruction offered by the plaintiff was incorrect, but it is insisted that this did not relieve the court of the duty to give a proper instruction upon a relevant issue thus called to its attention. Undoubtedly it would have been proper for the court to instruct the jury on the duty of the defendant to give warning as it approached the intersection (Bruce v. Western Pipe & Steel Co., 177 Cal.2d 25, 169 P. 660; People v. Frey, 165 Cal. 140, 131 P. 127), but it has been frequently held that where instructions are offered which cannot properly be given without modification the court may refuse to give them (Wiley v. Young, 178 Cal. 681, 174 P. 316; Dover v. Archambeault, 57 Cal.App. 659, 664, 208 P. 178, and cases cited).’

Defendant Mission Taxi Company contends that the court erred in giving instruction No. 58 proposed by defendant P. G. & E. Said instruction is as follows: ‘You are instructed that Section 550 of the Vehicle Code provides as follows: ‘550. Vehicle Approaching or Entering Intersection. (a) The driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection from a different highway. (b) When two vehicles enter an intersection from different highways at the same time the driver of the vehicle on the left shall yield the right of way to the driver of the vehicle on the right.’' Instructions were given as to what constituted an ‘intersection,’ what was a ‘right of way’ and that vehicles must stop at through highways (Vehicle Code, § 577) and in addition section 552 of the Vehicle Code was given as an instruction, as follows: ‘The driver of any vehicle which has stopped as required by this code at the entrance to a through highway shall yield the right of way to other vehicles which have entered the intersection from the through highway or which are approaching so closely on the through highway as to constitute an immediate hazard, but said driver having so yielded may proceeds and the drivers of all other vehicles approaching the intersection on the through highway shall yield the right of way to the vehicle so about to enter or cross the through highway.’ Since it is an undisputed fact that the accident here involved occurred at an intersection with a through highway, the defendant taxi company claims that the giving of the instruction on section 550 of the Vehicle Code was prejudicial error and this in spite of the fact that the court also gave the law under section 552, defendant citing and quoting from Elmore v. Lassen County, 10 Cal.App.2d 229, 232–233, 51 P.2d 481. That case, however, was overruled on the point for which it is here cited, by Pattisson v. Cavanagh, 18 Cal.App.2d 123, 63 P.2d 868, 64 P.2d 945, decided by this court in 1936. The Supreme Court in denying a hearing in the latter case said, ‘The application is based in part on a conflict between this decision and the decision rendered by the Second Division of the First District Court of Appeal in the case of Elmore v. County of Lassen, 10 Cal.App.2d 229, 51 P.2d 481. In so far as that case is inconsistent with the decision in the above-entitled case, we disapprove of the decision in the case of Elmore v. County of Lassen, supra.’ 18 Cal.App.2d at page 130, 64 P.2d at page 945.

The facts in the Pattisson case were similar to those in this case, except that the car proceeding down the arterial highway and driven by the plaintiff ran off the left-hand side of the road to plaintiff's damage when the defendant came in from the right. The same two instructions were given there as here, and the plaintiff argued on appeal from a decision for the defendant that they were conflicting and that the one dealing with the right of way at intersections in general took from the jury the question as to whether the presence of plaintiff's car constituted an immediate hazard. The court, in the Pattisson case, saying that the question of the negligence of each party was one for the jury, stated: ‘We are of the opinion that when all instructions upon the subject of right of way are read and considered together it cannot be said that they are conflicting or that the jury was misled thereby. The plain import thereof was that ordinarily the driver of an automobile entering an intersection first is entitled to the right of way thereover, but that before entering an arterial intersection he must stop and yield the right of way to any approaching vehicle thereon which constitutes an immediate hazard.’ 18 Cal.App.2d at page 127, 63 P.2d at page 870.

Defendant taxi company has cited numerous cases from this and other jurisdictions which appear to support its contention that it was error to give said instruction No. 58, but the latest expression of our Supreme Court upon the subject was its above-quoted language in denying a hearing in Pattisson v. Cavanagh, supra. Therefore, as an intermediate appellate court we feel that we are bound by that decision and must hold that the giving of said instruction was not error.

In view of the foregoing, we conclude that the evidence was sufficient to support the judgment against both defendants, that no prejudicial error was committed and that the judgments should be and they are hereby affirmed.

SCOTTKY, Justice pro tem.

PETERS, P. J. and BANY, J., concur.

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