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


Civ. 17486.

Decided: November 15, 1950

Samuel Maidman, and David H. Poltun, Los Angeles, for appellants. Chase, Rotchford, Downen & Drukker, and Richard T. Drukker, Los Angeles, for respondent.

This action arises out of an automobile collision at the intersection of San Fernando Road and Roxford Street, in the city of Los Angeles at 12:30 p. m. on January 5, 1947. San Fernando Road is a four-lane highway, with two lanes on either side of a double white line. Plaintiff George W. Landrum was driving his vehicle in the inside lane for northbound traffic on San Fernando Road, accompanied by his wife, plaintiff Allie S. Landrum, who sat at his right in the front seat. Defendant was operating his automobile in the inside lane for southbound traffic.

The inside lanes are designated in the record as those two lanes lying adjacent to and on either side of the double white line in the center of the highway. They were both ten feet wide.

When defendant was about 100 feet north of the intersection, he slowed to 15 or 18 miles per hour and gave a hand signal for a left turn easterly into Roxford; as he advanced into the intersection ‘there was a whole line of traffic’ approaching him from the opposite direction all in the inside northbound lane; the first car in that line was 75 or 80 feet south of the intersection. Slowing down to 12 to 15 miles per hour, defendant made the left turn without stopping, and collided with plaintiffs' car.

As plaintiffs approached said intersection from the south traveling 25 or 30 miles per hour, there was a car ahead of them. This car proceeded through the intersection in the inside northbound lane and passed behind defendant as he made his left turn.

Plaintiff husband testified that when he reached the intersection this car was about a car length ahead; that before this ‘I wasn't quite that close to him when I saw that he had cut his speed a little bit. Naturally I cut my speed a little bit. Then I was nearer to him than I was at the time he cut his speed.’

When plaintiff first saw defendant's car in front of him, he applied his brakes with full force and skidded, hitting defendant's car in the right middle section. When the impact occurred, defendant ‘was just about middle ways of the outer line which would divide the center lane and the outer lane. The single line is what I am trying to talk about.’

It is rather difficult to discover from the record the exact point of the impact between the two cars. Apparently a blackboard drawing was used to illustrate the collision. It is not among the exhibits brought up to this court.

Defendant was asked: ‘When you were hit, just about where on this diagram was your vehicle at the point of impact?’ To this he replied: ‘This part of Roxford is a lot more narrow. In making this turn, here was the double line. Next, here came the other line. My right rear wheel had just cleared this line here, and my left wheel in here, and I was on the point—similar to that—heading this way, and I was hit right there in the outer lane. * * * Well, I got just a flash, a car, a glimpse of a car coming right straight to me. Q. Now, can you tell me whether the car was in the lane nearest the double line, the lane nearest the curb, or straddle? A. No. It was definitely in the outside lane.’

When plaintiff was asked to describe the positions of the cars at the time of the impact, he stated: ‘The best that I remember is his (defendant's) car was just about half of it on—most we will say, the middle of the car would be across the outer lane—line, rather.’

Officer Hobson, who investigated the accident and took measurements of the intersection, testified that he looked for skid marks and ‘We found a small bit of skid right in approximately this locale here (marking the map). * * * Q. By Mr. Fairfield: Now, that left skid mark—how far was that from the center line? A. The left skid mark was approximately four feet east of the double center line of San Fernando Road.’ This officer also testified that he found brush marks: ‘The type of skid as laid down by a car which is traveling broadside’, to wit: defendant's car. He then indicated on the diagram where those brush marks were found.

Plaintiff, Allie S. Landrum sustained serious personal injuries and both cars were damaged as a result of the collision.

The jury returned a verdict in favor of defendant. From the judgment entered pursuant thereto, plaintiffs appeal. The action was also tried upon a cross-complaint filed by defendant for damages arising from the said collision. The jury found in favor of plaintiffs and against defendant on said cross-complaint, but no appeal was taken from the judgment thereon.

Appellants seek a reversal of the judgment in favor of respondent on the sole ground that the instruction to the jury numbered 58 was improper and prejudicially erroneous:

‘You are instructed that Section 531(a) of the California Vehicle Code, in full force and effect at the time of the happening of the accident in question reads as follows:

Ҥ 531. Following Too Closely. (a) (Following more closely than reasonable and prudent.) The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon, and the condition of, the roadway.'

It is here urged that it was error to give the instruction complained of because:

(1) The evidence does not establish a violation of section 531(a), nor does it show that a violation of such section proximately contributed to the accident;

(2) Said section 531(a) is inapplicable to the situation here involved;

(3) The jury was not instructed that a violation of said section must have proximately contributed to the accident.

The evidence presented with respect to appellants' relation to the forward vehicle was that prior to reaching the intersection, appellant husband was driving at a speed of from 25 to 30 miles per hour at a much greater distance behind the forward car than one car length; that as he reached the intersection, the forward car slowed down a little and appellant did likewise, thereby shortening the distance between them to one car length. The forward car continued through the intersection, passing to the rear of respondent's car which was then in the process of making a left turn in front of appellants' car.

Clearly this evidence is insufficient as a matter of law to establish a violation of the following-too-closely statute. Sec. 531(a) supra. As a result instruction 58 was improperly given. See Davenport v. Stratton, 24 Cal.2d 232, 254, 149 P.2d 4.

On the applicability of said statute to the facts disclosed by the record: said section is embodied in chapter 7 of the Vehicle Code entitled ‘Driving on Right Side of Roadway—Overtaking and Passing.’ It is based on section 127(a) of the California Vehicle Code of 1923, Stats. 1923 p. 558, to wit: ‘Sec. 127. Following too closely. (a) The driver of a motor vehicle shall not follow another vehicle or an animal or person closer than fifteen feet when upon any public highway outside of a business or residence district.’

In Mounts v. Tzugares, 9 Cal.App.2d 327, 333, 49 P.2d 883, it was held that section 127(a) did not apply where plaintiff's car was side by side with another car moving in the same direction at the time of a collision with an approaching vehicle.

In Church v. Payne, 36 Cal.App.2d 382, 402, 97 P.2d 819, 830, the court refused to give the identical instruction here in question. It was there stated that the instruction was correctly refused, in view of the fact that it assumed ‘that the accident was a rear-end collision, which is contrary to the finding of the jury which is supported by substantial evidence.’

Respondent directs attention to two cases: 1. Lewis v. Western Truck Line, 44 Cal.App.2d 455, 468, 112 P.2d 747, 754, where an automobile and a truck which was following it too closely were involved in a collision with a car traveling in the opposite direction. This car struck a rut in the road, sideswiped the automobile, and careening across the highway was struck by the truck. In that case it was held that respondents were entitled to have an instruction in the language of section 531(a) given to the jury upon one of their theories of the case: that both the automobile and the truck were jointly liable for the death of the occupant of the passing car, ‘due to their concurrent negligence or contributing proximate cause of the fatal accident.’

2. Rodriguez v. Savage Transportation Co., 77 Cal.App.2d 162, 168, 175 P.2d 37. There the plaintiff Rodriguez was driving south on Highway 101 near Salinas. Five trucks were proceeding north in a column on the east side of the highway moving at a speed of 40 to 45 miles per hour. As truck 3 started to pass truck 2, the latter warned him by a flicker of his lights that there was not proper clearance. Truck 3 fell in behind truck 2. Truck 1 then slowed down and truck 2 abruptly slowed to 25 miles per hour without a signal for lack of time. Accordingly truck 3 slowed down and closed up to within two or three feet. When the driver of truck 4 observed smoke coming from the tires of truck 3, he braked hard and pulled to the left at a speed of 25 to 30 miles per hour. He missed truck 3 by two feet and collided with plaintiff's car on the west shoulder of the highway. The court there held that both drivers of trucks 3 and 4 violated the provisions of section 531(a), since they were not only traveling too fast considering the existing conditions on the highway, but they both had ample opportunity to slow down and space their trucks in a safe fashion after learning that they could not pass.

In line with these various decisions, it is obvious that the statute in question cannot be limited solely to rear-end collisions. It is clearly applicable to those situations in which the forward car and the too-closely following vehicle are both involved in such manner as to cause injury or damage to others on the highway.

In the instant cause, the forward car had gone on its way through the intersection and was not involved in any way with the collision between appellants and respondents. Hence, the statute is not here applicable.

While the jury was given an instruction defining proximate cause generally, instruction 58 was to the effect that if appellants violated section 531(a) by following the preceding car too closely, they were guilty of negligence. The jury should also have been instructed that a violation of said section must have contributed to the accident. This omission was vital, because the section is not applicable to the situation revealed by the record. Moreover, it was not established that a violation thereof was the proximate cause of the collision.

As was so aptly stated in Spear v. Leuenberger, 44 Cal.App.2d 236, 252, 112 P.2d 43, 52 ‘We are not unmindful of the rule that we must consider the evidence in the light most favorable to the respondent; that all conflicts in the evidence must be resolved in his favor and that we must draw all reasonable inferences from the evidence in favor of the affirmance of the judgment, but, nevertheless, by reasons of the errors hereinbefore set forth, we feel that prejudice has resulted to the appellants and that but for such errors a different verdict might have resulted.’

In passing we note appellants' final point: that the trial court abused its discretion in denying their motion for a new trial based upon newly discovered evidence. The motion was supported by affidavits of three strangers to the effect that respondent made a sharp left turn without stopping directly in the path of appellants' car, and that the latter entered the intersection in a careful and cautious manner. Such evidence would be cumulative of appellants' testimony and directly contradictory of respondent's evidence.

As stated in Scott v. Flanagan, 14 Cal.App.2d 105, 112, 57 P.2d 1382, 1385; ‘It is a well-established rule that the granting of a new trial rests largely in the discretion of the trial court, and will not be disturbed if it can be upheld upon any ground shown by the record. (Smith v. Royer, 181 Cal. 165, 166 (183 P. 660).) Where the motion is based upon the ground of newly discovered evidence it must appear that the evidence is new, material, and not cumulative.’

For the reasons stated, the judgment is reversed and the cause remanded for a new trial.

DRAPEAU, Justice.

WHITE, P. J., and DORAN, J., concur.