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District Court of Appeal, Second District, Division 3, California.


Civ. 17646.

Decided: November 22, 1950

Ball, Hunt and Hart, Long Beach, for appellants. Delmar W. Doddridge, Lindsay, for respondent.

This is an action for damages for injuries suffered in an automobile collision at an intersection of two streets in the city of Long Beach. The complaint alleged that plaintiff was driving her car northerly along Earl Avenue when it was struck by the car of defendants which was being operated in a negligent manner westerly along 25th Street. The answer denied negligence of defendants and alleged contributory negligence on the part of plaintiff, consisting of her failure to operate her car with ordinary care at the time and place of the accident. The case was tried to a jury and resulted in a verdict and judgment in favor of defendants. Plaintiff moved for a new trial upon all statutory grounds. The motion was granted by an order which did not specify the ground or grounds therefor. The appeal is argued in the briefs upon the theory that the motion was granted upon the ground that the court had erred to the prejudice of plaintiff by giving an instruction reading as follows: ‘In law we recognize what is termed an unavoidable or inevitable accident. These terms do not mean literally that it was not possible for such an accident to be avoided. They simply denote an accident that occurred without having been proximately caused by negligence. Even if such an accident could have been avoided by the exercise of exceptional foresight, skill or caution, still, no one may be held liable for injuries resulting from it. (Requested by Defendants; given as requested.)’ This is the only point to be considered.

It was error to give the instruction. Under no rational view of the evidence could the accident be considered to have been unavoidable in a legal sense. Each of the streets in question was 36 feet wide. The centers were not marked and there were no traffic signs at the intersection. In order for the respective drivers to see each other they would have had to look across the southeast corner of the intersection where a house, trees and other objects would partially obstruct their views. Plaintiff testified she was driving about 12 miles an hour, looked to the west as she entered the intersection, then towards the east, saw defendants' car 75 or 100 feet away, did not observe its speed, continued on, thinking she could pass in front of defendants' car, endeavored to do so, but failed. In her deposition she testified she was traveling 15 or 20 miles an hour as she entered the intersection. Defendant, Carl Womack, 17 years of age, testified that he had five other young people in his car, had been traveling about 30 miles an hour, reduced his speed to about 20 miles an hour as he reached the intersection, looked for approaching traffic but saw none until he observed plaintiff's car when he was about six feet into the intersection and plaintiff's car was six or seven feet south of the center line of 25th Street. The cars came together in the northeast quadrant of the intersection, about 16 feet south of the north curb line of 25th Street, and 10 1/212 feet west of the east curb line of Earl Avenue. Defendant had not applied his brakes, nor had plaintiff slackened her speed. The issues of fact were: (1) Was defendant Carl Womack negligent; (2) Was plaintiff guilty of contributory negligence. Although the jury was instructed on proximate cause, there would have been no reasonable basis in the evidence for a finding that if either plaintiff or defendant was negligent, or both were negligent, such negligence would not have been a proximate cause of the collision. However, this feature of the case is not mentioned in the briefs.

It is obvious that a finding that the collision was unavoidable would have had no support in the evidence. The only actors were the two drivers. No other car was involved, nor was the operation of either car impeded or influenced by any mechanical failure, obstruction, or extraneous force. If the accident could have been avoided by the exercise of ordinary care on the part of one driver or the other, or both, it was, of course, not unavoidable.

An instruction on unavoidable accident is improper unless it is within the issues pleaded, and there is evidence of unavoidability. It is not enough that it be merely pleaded by a denial of negligence, or otherwise. In passing upon the sufficiency of the pleadings to warrant an instruction on unavoidable accident, it has sometimes been overlooked that there must also be supporting evidence.

In the following cases it was held proper to instruct on unavoidable accident under defendant's denial of negligence, without considering whether there was evidence that would have supported a finding that the accident was unavoidable. Pearce v. Elbe, 98 Cal.App. 101, 276 P. 389; Sitkei v. Ralphs Grocery Co., 25 Cal.App.2d 294, 77 P.2d 311; Schubkegel v. Dunn, 31 Cal.App.2d 312, 87 P.2d 875; Stevenson v. Fleming, 47 Cal.App.2d 225, 117 P.2d 717; Martindale v. Atchison, T. & S. F. Ry. Co., 89 Cal.App.2d 400, 201 P.2d 48.

In the following cases the instruction was held proper where there was evidence that the accident was unavoidable. Graham v. Consolidated M. T. Co., 112 Cal.App. 648, 297 P. 617 (child ran into street); Creamer v. Cerrato, 1 Cal.App.2d 441, 36 P.2d 1094 (same); Jolley v. Clemens, 28 Cal.App.2d 55, 82 P.2d 51 (horse suddenly appeared on highway); Zaferis v. Bradley, 28 Cal.App.2d 188, 82 P.2d 70 (driver's foot became wedged between pedals); Smith v. Harger, 84 Cal.App.2d 361, 191 P.2d 25 (small boy pushing on back of dump truck); Merry v. Knudsen Creamery Co., 94 Cal.App.2d 715, 211 P.2d 905 (brake failure).

In Jaques v. Southern Pac. Co., 8 Cal.App.2d 738, 48 P.2d 63, Barr v. Hall, 12 Cal.App.2d 489, 492, 55 P.2d 1246, and D'Avanzo v. Manno, 16 Cal.App.2d 346, 60 P.2d 524, it was held proper to refuse the instruction where there was no evidence that would have supported a finding of unavoidable accident. In Jaques v. Southern Pac. Co., supra, the court said 8 Cal.App.2d at page 741, 48 P.2d at page 64: ‘There was no evidence upon which this instruction could be based. All the evidence tended to support the respective theories of the two parties—one that the accident was due to the careless and negligent operation of the train, the other, that it was due to respondent's negligence in running in front of the moving train. The evidence all tended to prove the respective theories—that the accident was not unavoidable, but that it could have been avoided by the other party.’ This statement fits our case precisely.

The giving of an instruction on unavoidable accident where there was no evidence that the accident was unavoidable was held to be prejudicial error in Hyman v. Market Street Ry. Co., 41 Cal.App.2d 647, 107 P.2d 485, and Scandalis v. Jenny, 132 Cal.App. 307, 22 P.2d 545.

In the present case, the instruction not only tended to divert the minds of the jurors from the decisive issues of negligence and contributory negligence, but suggested that under the evidence the defendants might be held blameless for some reason other than their freedom from negligence or contributory negligence on the part of plaintiff. In view of the evidence we have stated we can conceive of no theory under which the accident could have been found to be unavoidable, unless it be that collisions at intersections, where the views of the drivers are obstructed, are bound to occur, and therefore may be deemed to be unavoidable. This would be a highly unreasonable theory, but appellants have suggested no better one. They say: ‘From the evidence adduced, the jury could have found that defendant Womack exercised reasonable care in the control of his automobile,’ and also, ‘accepting plaintiff's version, it might well be that a jury could conclude her conduct was not negligent.’ Without comment on these statements, we add that the jury could not reasonably have found both parties to have been free from negligence. Appellants' analysis of the evidence and their arguments tend to emphasize the fact that the accident was not unavoidable.

Where a new trial is granted for the reason that an erroneous instruction was prejudicial to the rights of the moving party, the order will not be reversed unless it can be said that the ruling was an abuse of discretion. Nance v. Fresno City Lines, Inc., 44 Cal.App.2d 868, 113 P.2d 244; Middelton v. California St. Cable Ry. Co., 73 Cal.App.2d 641, 167 P.2d 239; Mazotta v. Los Angeles Ry. Corp., 25 Cal.2d 165, 153 P.2d 338; Brown v. George Pepperdine Foundation, 23 Cal.2d 256, 143 P.2d 929; Copley v. Putter, 93 Cal.App.2d 453, 207 P.2d 876; Jones v. Scurlock, 96 Cal.App.2d 201, 214 P.2d 599. The order granting a new trial was not an abuse of discretion, but, upon the contrary, was a proper one for the court to make.

The order is affirmed.

SHINN, Presiding Justice.

WOOD and VALLÉE, JJ., concur.