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District Court of Appeal, Third District, California.


Civ. 7520.

Decided: January 12, 1949

Willens & Boscoe, of Stockton, for appellants. Honey & Mayall, of Stockton, for respondent.

Appellants, the surviving parents of Bobby Bonebrake, brought this action to recover damages for the death of their son, a boy aged 141/212 years, it being alleged that respondent was liable by reason of negligence on her part.   A verdict by a jury was rendered in favor of defendant a new trial was denied, and on this appeal from the judgment which followed, appellants make two contentions, first, that the evidence is insufficient as a matter of law to support the judgment, and, second, that the jury was misdirected to the prejudice of plaintiffs.

 It is too well established to call for extended citations of authority, that when appellate courts are reviewing the evidence before them, presumptions must be indulged in favor of the verdict of a jury, and they must accept as true all evidence tending to establish the correctness of such verdict, and give the prevailing party the benefit of every favorable inference that can be drawn in support of a verdict in his favor.  Porter v. Signal Trucking Service, 59 Cal.App.2d 289, 293, 138 P.2d 753;  Singh v. Corbin, 65 Cal.App.2d 105, 108, 149 P.2d 866, and cases there cited.

Thus considered, the evidence shows that between one and two o'clock in the afternoon of March 2, 1947, Bobby Bonebrake was riding his bicycle on the highway near Manteca, and that defendant was there driving her automobile, going in the same direction, behind the boy.   When first seen by defendant the lad was riding on the right shoulder of the highway.   Defendant, driving at a speed of 45 to 50 miles per hour, said that she saw the boy when about 450 feet distant, and when about 150 feet from him she sounded her horn;  that he did not turn but kept pedaling along until just as she was about to pass him he made a sudden turn onto the highway without making any signal, and ran his bicycle into the right front headlight, bumper and fender of her car.   At that time she was on her right side of the highway traveling near the center white line, and when the boy turned she applied her brakes and swerved to her left keeping her brakes on until she stopped.

The only other witness to the accident, a Mr. Kerwin, who was approaching from the opposite direction when the accident occurred, said that when about 500 feet away he saw the parties;  that the boy was traveling on the shoulder until the accident, when he saw him fall from the fender of defendant's car.   He also testified regarding skid marks on the highway, which he said were in three disconnected sections, covering an overall distance of about 305 feet.   But he also testified that immediately after the accident a car driven at high speed approached, and that the driver slammed on his brakes and skidded, almost striking a girl who was helping to remove the boy's body.   A traffic officer who came to the scene of the accident also testified regarding skid marks, saying there were two sets of light ones, then one set of very heavy ones, all in defendant's lane.

It cannot be gainsaid that the recited evidence gives ample support to the verdict of the jury.   But appellants urge that defendant's testimony given at the trial is inconsistent with a statement which she gave to the traffic officer who reported her as saying that when she sounded her horn the boy turned his head and looked in her direction.

 Appellants recognize the rule of law that it was the function of the jury to resolve these inconsistencies, but they urge that the skid marks on the highway overcome her testimony to such an extent that this court should say that, as a matter of law, negligence on her part was the sole cause of the death of the boy;  that the skid marks indicate that defendant sensed danger to him when she was 200 feet away at which time she applied her brakes thus causing skid marks for 200 feet before the collision;  and that she should have stopped or reduced her speed sufficiently to avoid striking him.   But in view of the testimony of Mr. Kerwin regarding the skidding of the car which came along after the accident, the jury may well have inferred that the lighter marks were made by that car, and not by defendant's especially since the third set of marks leading to defendant's car were very heavy;  or they may well have concluded that the decedent was guilty of contributory negligence.   In any event, the conclusions of fact were for the jury and this court cannot say that there is not in the record ample evidence, even though conflicting, to support the verdict.  Hansen v. Bear Film Co., Inc., 28 Cal.2d 154, 184, 168 P.2d 946.

And as to the conflict of physical facts with the testimony of a witness, see Fraser v. Stellinger, 52 Cal.App.2d 564, 567, 126 P.2d 653.   Also see Anderson v. Ott, 127 Cal.App. 122, 130, 15 P.2d 526, 530, quoting from Hawthorne v. Gunn, 123 Cal.App. 452, 455, 11 P.2d 411, to the effect that “Perhaps there is nothing more certain about an automobile accident than the fact that the visible results afterward are not an infallible guide in determining what occurred.”  Nagamatsu v. Roher, 10 Cal.App.2d 752, 755, 756, 53 P.2d 174;  Collier v. Los Angeles Ry. Co., 60 Cal.App.2d 169, 173, 174, 140 P.2d 206;  Shannon v. Thomas, 57 Cal.App.2d 187, 195, 134 P.2d 522;  Akers v. Cowan, 26 Cal.Ap.2d 694, 696, 80 P.2d 143.

 Appellants' contentions regarding instructions is that the trial court erred in refusing to give one regarding last clear chance.   The Supreme Court said, in Lund v. Pacific Electric Ry. Co., 25 Cal.2d 287, 298, 153 P.2d 705, that the doctrine of last clear chance comes into play only to enable a plaintiff to recover despite negligence on his own part;  that it operates, where all of its elements are present, to defeat the defense of contributory negligence.  Johnson v. Sacramento Northern Railway, 54 Cal.App.2d 528, 531, 533, 129 P.2d 503, was there cited;  and in the Johnson case it was held that there was insufficient evidence to warrant the giving of an instruction on last clear chance.  Palmer v. Tschudy, 191 Cal. 696, 700, 218 P. 36, 37, was there quoted to the effect that “The last clear chance rule presupposes:  That the plaintiff has been negligent;  that as a result thereof she is in a situation of danger from which she cannot escape by the exercise of ordinary care;  that the defendant is aware of her dangerous situation under such circumstances that he realizes, or ought to realize, her inability to escape therefrom;  that he then has a clear chance to avoid injuring her by the exercise of ordinary care, and fails to do so.   If all of these elements are present, the rule applies and enables the plaintiff to recover, notwithstanding her own negligence.   But if any of them be absent the rule does not apply, and the case is governed by the ordinary rules of negligence and contributory negligence.”

In the Johnson case it was also said (54 Cal.App.2d at page 532, 129 P.2d at page 505) that an injured party may not ordinarily invoke such doctrine in cases involving collisions between moving vehicles;  that (54 Cal.App.2d at pages 533, 534, 129 P.2d at pages 506, 507) it presupposes time for effective action, and is not applicable where the emergency is so sudden that there is no time in which to avoid the accident;  also that the “situation of danger” referred to by authorities dealing with the last clear chance doctrine is reached only when a plaintiff, moving toward the path of an oncoming train or vehicle, has reached a position from which he cannot escape by the exercise of ordinary care;  and that it is not enough that plaintiff is merely approaching a position of danger, for until he has reached such position he has the same opportunity to avoid the accident by exercise of ordinary care as has defendant.

See Dalley v. Williams, 73 Cal.App.2d 427, 431, 166 P.2d 595, holding that to charge a jury on the last clear chance doctrine is reversible error where there is no substantial evidence to support the theory;  also see Berton v. Cochran, 81 Cal.App.2d 776, 781, 185 P.2d 349, and Dickey v. Thornburgh, 82 Cal.App.2d 723, 729, 187 P.2d 132.

The evidence shows that when defendant first observed the boy he was riding on the shoulder and not in a position of danger;  that he continued along the shoulder and only when defendant was about to pass him did he swerve into her car.   Witness Kerwin testified:

“Q. You didn't expect an accident to happen until you saw it happen?   A.  No, I didn't, absolutely not.

“Q. As far as you could see, up until the time this accident happened, nobody was in any danger?   A.  No.

“Q. Didn't appear like there was going to be any accident.   In other words, you saw the boy, when you first saw him before this accident happened, he was apparently in a position of safety as far as Mrs. McCormick's car was concerned, isn't that right?   A.  I think so, yes.

“Q. That is right, isn't it?   A.  Yes.”

 Appellants assume that defendant, after she acquired knowledge of the boy's perilous position, had a clear opportunity to avoid the accident;  but the evidence does not establish this as a fact.   Appellants rely upon a statement by officer Stone that defendant told him an inconsistent story, which was that she first saw the boy's danger when she was 100 feet away.   But the testimony of the officer was denied by defendant, and was, at the most, but impeachment, and not of itself proof of the fact.  Lopez v. Wisler, 58 Cal.App.2d 455, 462, 136 P.2d 816.   We conclude that the evidence fails to show that defendant ever had a clear chance to avoid the accident, and that there was no error in refusing the requested instruction on last clear chance.

Finally appellants urge that there was error in the given instruction on speed.

The court instructed, first that “Violation of any of the provisions of the Vehicle Code of the State of California raises a presumption of negligence on the part of the violator, except as to those provisions dealing with speed.”   This was followed by a reading of Vehicle Code, section 510, and the portion of section 511 reading:  “The speed of any vehicle upon a highway not in excess of the limits specified in this section or established as authorized in this code is lawful unless clearly proved to be in violation of the basic rule declared in Section 510 hereof.  * * *,” and a statement that the prima facie speed limit at the time and place of the accident was 55 miles per hour.   Section 513 was then read.

Appellants particularly object to the first paragraph of said instruction saying that violation of the basic speed law as defined in section 510 is negligence as matter of law, and that the burden was on defendant to prove that she was not violating it.

 There is no evidence that defendant was exceeding the limit of 55 miles per hour permitted at the time and place of the accident;  and whether or not defendant was driving at a speed greater than reasonable or prudent, having due regard for the traffic on and the surface and width of, the highway, and at a speed that endangered the safety of persons or property, was a question for the jury.  Porter v. Signal Trucking Service, 59 Cal.App.2d 289, 294, 138 P.2d 753;  Ferrula v. Sante Fe Bus Lines, 83 Cal.App.2d 416, 419, 189 P.2d 294;  In re Ryan, 61 Cal.App.2d 310, 313, 142 P.2d 769.   The evidence does not show that the traffic was excessive, or that the condition of the highway was other than good.   Section 511 provides that the speed of any vehicle upon a highway not in excess of the limits specified in that section, or established as authorized, is lawful unless clearly proved to be in violation of the basic rule in section 510;  and section 513 provides that speed in excess of any prima facie limit declared in section 511, at a particular time and place shall not establish negligence as a matter of law, but it shall be necessary to establish as a fact that the operation of a vehicle at such excess speed constituted negligence.

The record shows that appellants proposed an instruction reading:

“The speed at which a vehicle travels upon a highway, is considered as an isolated fact and simply in terms of so many miles an hour, is not proof either of negligence or of the exercise of ordinary care.

“Whether that rate of speed is a negligent one is a question of fact, the answer to which depends on all the surrounding circumstances.

“The basic speed law of this state is as follows:  ‘No person shall drive his vehicle upon a highway at a speed greater than is reasonable or prudent, having due regard to the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property.’ ”

 It was refused apparently because the subject matter was contained in other instructions.   But appellants did not, in their own proposed instructions, urge that a violation of section 510 was negligence as matter of law.   Appellants apparently recognized that whether defendant was negligent or not was a question for the jury to decide under all of the circumstances shown by the evidence.   The jury were so advised.   They resolved the question in favor of defendant and their conclusion finds ample support in the record.

The judgment is affirmed.

ADAMS, Presiding Justice.