MILLER v. PETERS

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District Court of Appeal, Fourth District, California.

MILLER et al. v. PETERS et al.

Civ. 4136.

Decided: November 27, 1950

Novack & Haberkorn, San Bernardino, Henry E. Walker, Los Angeles, of counsel, for appellants. Guthrie, Lonergan & Jordan and Swing & Gillespie, all of San Bernardino, for respondents.

Action for damages for personal injuries arising out of a collision, when an automobile in which plaintiff Emily Miller was riding as a guest ran into and collided with a bus owned and operated by defendants.

A jury trial was had and a verdict was returned in favor of the defendants. From the judgment which followed, plaintiffs appeal on the sole grounds that the trial court erred: (1) In instructing the jury that it could find personal contributory negligence to exist on the part of plaintiff guest passenger; and (2) In refusing to instruct the jury to find that there was no issue of, and no contributory engligence on the part of plaintiff guest passenger.

Facts

The accident happened at about 6:00 o'clock P.M., May 9, 1948, on Highland Avenue, a short distance east of the city limits of the city of San Bernardino. At this point the avenue extends in a general east and west direction and the paved portion thereof is 36 feet wide, with dirt shoulders 9 feet wide on the north and 22 to 24 feet on the south, to a fence.

Defendants' bus had been driven east on Highland Avenue and off the pavement on the said dirt area, and at the time of the accident, the driver was making a left ‘U’ turn on Highland Avenue so as to bring the bus to a stop, facing west at the end or terminal of the bus route.

The driver testified that he drove the bus off Highland Avenue in close to the fence and then back out to the road. He there stopped, adjusted the hand signal to indicate a left turn and looked to the east and to the west, after which he shifted into low gear and commenced to make his turn; that when looking to the west he saw one car but did not estimate its speed because it was so far away; that this car was at least 700 feet or more distant from him; that as he was making the turn, the bus was traveling between three and four miles per hour and before he had completed the turn, the bus stalled; that he set the emergency brake and attempted to start it. While the bus was in this position, and within a few seconds, the automobile, operated by Harold Miller, son of plaintiff Emily Miller, struck it in front of the left rear wheel, knocking the bus easterly a distance of from 15 to 20 feet.

Harold Miller testified that, accompanied by his mother, he was driving east on Highland Avenue in a Pontiac automobile, owned by him; that before reaching the scene of the accident, he passed a car traveling in the same direction and at that time he was traveling between 40 and 45 miles per hour; that after passing this car, he returned to the south half of the paved highway and did not thereafter increase his speed above 45 miles per hour; that he first saw defendants' bus to the east when he was approximately 200 feet away and that it was facing east; that he continued to watch the bus and continued traveling eastward at about 45 to 50 miles per hour; that when he was about 150 feet away, the bus moved so as to face in a northeasterly direction, with the left front wheel on the paved portion of the highway; that he sounded his horn; that the bus continued its circling movement, and when he reached a point about 100 feet from it, he turned toward the north half of Highland Avenue, thinking he could go around in front; that when he saw that he was unable to pass in front of the bus, he turned back toward the south half of the highway and applied his brakes, but was unable to avoid the collision.

There was evidence that the Pontiac car left tire marks on the pavement extending approximately 102 feet to the west from the point of impact and evidence that the speed of the Pontiac car was greater than stated by Harold Miller. One witness, parked on the highway near the scene of the accident, estimated the speed of the Pontiac car to be between 50 and 60 miles per hour, and a witness, who was driving the car which Miller passed immediately prior to the collision, and his passenger, testified to facts from which the jury could reasonably draw the inference that the Pontiac was being driven in excess of 50 miles per hour at the time the accident occurred and immediately prior thereto. Miller admitted on cross-examination that he had stated to a traffic officer that he was driving at a rate of speed estimated to be 50 to 55 miles per hour immediately prior to the accident.

As heretofore noted, the first ground of appeal is alleged error in one of the instructions given relating to contributory negligence. The given instruction under attack reads as follows: ‘If you should find that the plaintiff Harold Herbert Miller, driver of the Pontiac Sedan automobile in which plaintiff Emily Miller was riding, was driving said Pontiac at a dangerous and excessive rate of speed considering all the facts and circumstances leading up to and immediately prior to the happening of said accident, and if you should find that said rate of speed was dangerous, and excessive under all the facts and circumstances immediately prior and leading up to the happening of said accident, and if you should also find that the plaintiff, Emily Miller, had knowledge or knew of that fact in time to have objected or remonstrated or to have requested that the speed be reduced to a reasonable rate prior to the accident, and if you should find that under all of said facts and circumstances immediately prior to and leading up to the happening of said accident, that an ordinarily prudent person would have remonstrated and requested that the speed of said Pontiac automobile be reduced, and if you should further find that the plaintiff Emily Miller did not remonstrate or request that said speed be reduced, and if you should further find that the accident was proximately caused in whole or in part by such rate of speed, then the plaintiff Emily Miller is not entitled to recover any damages.’

Plaintiffs argue that the evidence was insufficient as a matter of law to sustain a finding that the passenger, Mrs. Miller, had had been guilty of contributory negligence and therefore it was prejudicial error to give the quoted instruction and that since the answer did not set up the affirmative defense of contributory negligence as to plaintiff Emily Miller, that the court erred in giving an instruction on that issue. In this connection, during the trial the defense called plaintiff Harold Miller as a witness. He testified in response to several questions that his mother did not ask him to slow down the car or remonstrate with him in any way as to the manner in which it was being operated prior to the collision. Plaintiff Emily Miller was likewise called as a witness by the defense and testified that she did not recollect having asked her son to slow the car down. The foregoing evidence was admitted without objection on the part of the plaintiffs.

It is conceded that the defense of contributory negligence was not pleaded in the answer, but there was nothing in the testimony taken at the trial to indicate that it was not actually one of the issues tried and as is stated in Guay v. American President Lines, 81 Cal.App.2d 495, 515, 184 P.2d 539, 551: ‘The law is well settled that even where issues are not specifically alleged in a complaint or other pleading, if evidence is introduced on those issues without objection, such issues are properly involved in the case. The objection may not properly be made for the first time on appeal that such issues were not presented by the pleadings. McAllister v. Union Indemnity Co., 2 Cal.2d 457, 32 P.2d 650, 42 P.2d 305; Northwestern Mut. Fire Ass'n v. Pacific Wharf & Storage Co., 187 Cal. 38, 200 P. 934; see cases collected 14 Cal.Jur. p. 974, § 62.’

The rule is also stated and approved in the following decisions: Roynon v. Battin, 55 Cal.App.2d 861, 868, 132 P.2d 266; Grimes v. Nicholson, 71 Cal.App. 538, 543, 162 P.2d 934; and in Malinow v. Dorenbaum, 51 Cal.App.2d 645, 653, 125 P.2d 554.

It was held in Etienne v. Kendall, 202 Cal. 251, 257, 259 P. 752, that under section 4 1/212 of Article VI of the Constitution when an attack upon a judgment is based on an error in the pleadings, and upon examination of the evidence, the appellate court is satisfied that the error complained of has not resulted in a miscarriage of justice in that it has not affected the substantial rights of the appellant, the judgment may not be reversed solely upon the ground of error occurring in the pleading.

In the instant case the testimony of plaintiff Harold Miller and his mother relative to her conduct immediately prior to the accident, which testimony was admitted without objection, together with the other circumstances shown, was sufficient to authorize the giving of an instruction on the doctrine of contributory negligence whether such defense was pleaded or not.

The argument is advanced that there was no evidence other than the quoted testimony sufficient to justify the giving of the criticized instruction. However, the evidence introduced with respect to the speed of the Pontiac sedan and the manner in which the driver of the Pontiac operated the car immediately prior to the accident were facts properly to be considered by the jury in determining whether or not the conduct of the plaintiff Emily Miller amounted to contributory negligence under all the facts and circumstances of the case.

An instruction similar to the one here criticized was given and approved in the case of Valencia v. San Jose Scavenger Co., 21 Cal.App.2d 469, 69 P.2d 480.

Here the jury was instructed that the plaintiff Emily Miller was not entitled to recover any damages if, and only if, the jury found that the Pontiac was being driven at a dangerous and excessive rate of speed, considering all the facts and circumstances; that Emily Miller had knowledge of that fact in time to have objected or remonstrated or to have requested that the speed be reduced to a reasonable rate prior to the accident; that under the circumstances an ordinarily prudent person would have remonstrated and requested that the speed of the car be reduced and that the accident was proximately caused in whole or in part by such excessive and dangerous rate of speed.

The determination of whether or not contributory negligence existed was fairly put before the jury and as was said in Valencia v. San Jose Scavenger Co., supra, 21 Cal.App.2d at page 475, 69 P.2d at page 483: ‘However, irrespective of the question of evidence, it is well settled that the giving of correct instructions upon abstract propositions of law not entirely applicable to the circumstances of the particular case do not warrant a reversal unless it clearly appears that the jury was misled thereby to the prejudice of the appealing party. Hardy v. Schirmer, 163 Cal. 272, 124 P. 993; Sinsabaugh v. Clark, 110 Cal.App. 340, 294 P. 462, citing numerous cases. And in the present case, even though it be assumed that the evidence above narrated was not enough to warrant the giving of the two instructions under consideration, appellants have not suggested any facts nor presented any argument to show that the jury was misled thereby to appellants' prejudice.’

Plaintiffs finally argue that the jury should have been instructed that there was no issue of contributory negligence on the part of plaintiff Emily Miller. However, as we have indicated, there was sufficient evidence to present the question to the jury as one of fact, as was here done.

The judgment is affirmed.

MUSSELL, Justice.

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