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District Court of Appeal, Fourth District, California.

GUERRA et al. v. BROOKS.

Civ. 4090.

Decided: March 16, 1951

Werdel & DiGiorgio, Bakersfield, for appellants. Johnston, Baker & Palmer, Bakersfield, for respondents.

Samuel Guerra, aged 20, son of plaintiff Miguel Guerra, was driving a motorcycle easterly on the south half of U. S. Highway No. 466 (Edison Highway) at a point about three miles from Bakersfield and east of the city limits thereof, at about 8:30 p. m. on December 29, 1948. Defendant was driving a Ford car in a westerly direction on the north half of the highway. A railway track runs parallel with the highway on the north. On the south side of it is a built-up section in which is located ‘Andrews' Market’, which faces the roadway. U. S. Highway 466 is intersected by Mt. Vernon Street about 500 feet west of the market and by Oswold Street about 1 1/212 miles east of it.

Defendant testified that as he approached the market it was his intention to turn to his left to stop there for some groceries; that although it was a dark, misty night, he could see by the aid of his lights and the lights reflected from the store for a distance of about 250–300 feet down the road; that as he approached the market he was proceeding about 25 miles per hour; that he rolled down the glass in his left-hand door and made a left turn hand signal for about 150 feet; that he looked up the highway and there were no cars or car lights approaching in front of him; that when he was satisfied that there was no one in his pathway or behind him to create a hazard, he slowed his car to five miles per hour and turned it to the left; that when partially across the center line he, for the first time, saw the motorcycle; that he observed no lights on it; that it struck his automobile near the radiator and the rider was thrown into the air and landed on the soft shoulder of the south side of the highway; that the rider picked himself up and shut off the motor on his motorcycle.

The wife of defendant, who was riding in the front seat with her small son, testified and corroborated her husband's testimony. She definitely stated she was looking down the highway and saw no light of a vehicle approaching; that after the accident she went around the car and noticed there were no lights burning on the motorcycle; that when the officer arrived he turned the lights on and off again.

Samuel Guerra testified he was traveling in the center of the south lane about 40–45 miles per hour when he saw the lights of a car coming at him from the north side of the road and that the car turned sharply in front of him into the south lane; that the lights of the motorcycle were then on; that he had ‘flicked’ them from low to high a short distance down the highway; that when the lights were changed from high to low it automatically stopped the motor; that his motorcycle hit defendant's car; that he did not observe any signal being made by the driver of the car; that after being thrown to the ground he walked over to the motorcycle, turned off the motor, and ‘put the parking lights on’; that he had pain in his broken arm, and that he was thereafter taken to the hospital for treatment. Hospital, doctor bills and bills for repair of the motorcycle were received in evidence.

A witness who was proceeding westerly and back of defendant's car at the time, testified that his lights were on the defendant's car; that he saw it make a ‘gradual’ left turn and that he did not see defendant make a left-hand turn signal; that the Ford came to rest with the rear wheels ‘just over or just in back of the white line’; that he did not see the motorcycle until after the collision.

Another witness testified that about ten minutes after the accident all the light he noticed on the motorcycle was a taillight. Another witness claimed that after the accident he heard the motor running on the motorcycle and in regard to seeing lights on it said: ‘Yes, if it wasn't them, it was light from the cars that was knocked off, it was still burning, because it was lying down on the ground’; that he just ‘saw the lights come on’ and that he went to care for a gas customer.

A highway patrolman who arrived soon after the accident testified that he could not say whether the lights were on or off of the motorcycle when he arrived.

Another witness claims she heard the impact, saw the motorcycle lying on its side with the motor running and that the lights were on; that the owner went over and turned off the motor and the ‘big’ lights and the ‘little one’ came on.

The jury returned a verdict for defendant, who not only denied negligence on his part but pleaded contributory negligence of plaintiff. As may be noted from the evidence there was a question as to whether the lights were sufficiently illuminated on the motorcycle just prior to the accident and a question as to whether defendant made a left-hand turn signal which was visible to plaintiff if he had looked. There probably was a sufficient showing of facts, if believed by the jury, warranting a finding of negligence on the part of defendant and of contributory negligence on the part of the plaintiff in respect to this portion of the evidence.

A more serious question arises as to the refusal of the court to receive certain proffered evidence as to certain speed restriction signs and as to certain instructions given or refused on that subject. During the trial the question arose as to whether the highway, at the scene of the collision, was or was not in a so-called ‘business district’, whether such highway was or was not sign-posted, as required by section 468 of the Vehicle Code, and as to what speed limit should there be applied.

The officer who made the report of the accident designated therein that the district had a permissible 55-mile per hour speed limit. He testified that he did not find a speed reduction sign ‘anywhere on that highway in that vicinity’ but that he did not observe as far east as Oswold Street. Defendant produced a witness who had prepared a plat showing the places of business on the south side of Edison Highway easterly and westerly of the ‘Andrews' Market’ as of December 28, 1948, and testified that more than 50 per cent of that district was occupied by business structures. This evidence was offered for the apparent purpose of showing that the prima facie speed limit at that point was 25 miles per hour.

During plaintiff's case, he offered to prove that about one mile east of this area there was a sign erected on the north side of the highway, visible to persons traveling in a westerly direction reading: ‘End of 25 mile zone’ and that there were no other signs restricting the speed limit until approximately 2 1/212 miles past the area of the accident at a point on the north side of the highway there was a regular speed restriction sign of ‘25 miles' facing east, and that accordingly the district in between those two signs was a 55 mile per hour district or zone. In support of the offer he cited Noble v. Kertz & Son Feed, etc., Co., 72 Cal.App.2d 153, 164 P.2d 257; and McGough v. Hendrickson, 58 Cal.App.2d 60, 65, 136 P.2d 110.

In this connection it is argued that the rejection of this evidence and the failure to give plaintiff's instruction in the language of sec. 468 of the Vehicle Code withdrew from the jury the basic facts upon which it could properly determine the question of the speed limit allowed in that district; that before an area may be considered a speed restricted district it must be both posted and have the required number of buildings; that defendant failed to show that such district was ‘posted’ for a restricted speed limit, and accordingly the jury was not properly instructed in reference to the speed allowed; and that under the evidence and instructions given, the jury might well have concluded that plaintiff was guilty of contributory negligence by exceeding the speed limit of 25 miles per hour at the time.

Section 89 of the Vehicle Code, defining a ‘Business District’ was read to the jury. The trial court then gave a speed limit instruction in the language of sections 510 and 511 of the Vehicle Code, i. e., that the prima facie speed limits are ‘(b) Twenty-five miles per hour’ in any business or residential district; ‘(c) Fifty-five miles per hour under all other conditions unless a different speed is established as provided’ in the code and ‘signs are in place giving notice thereof’. No instruction was given as to the requirements of the Vehicle Code pertaining to the erection and maintenance of limited or permissible speed signs.

Plaintiff offered instructions in the language of sections 465, 466, 468, 468.1, and 759 of the Vehicle Code pertaining to the erection of such signs, and offered a general instruction that there is a legal presumption that no road is deemed to be within a ‘business or residence district’ unless it appears first, that there is within the district the required density of structures, and second, that the district is sign-posted ‘at the boundary lines thereof’; that this presumption is, however, rebuttable. These proffered instructions were refused.

Plaintiff's complaint seems to be well grounded in respect to the ruling of the court sustaining the objection to the offer of proof, and its refusal to give the proffered instructions. Noble v. Kertz & Son Feed, etc., Co., supra, definitely holds that an area must be both posted and have the required number of buildings to be a ‘residential district’ within Vehicle Code section 511, and that when the nature of a district is in dispute, the question is one of fact. See, also, Cavalli v. Luckett, 40 Cal.App.2d 250, 104 P.2d 708.

It is defendant's argument that the cases upon which plaintiff relies were decided before the amendment of section 758 of the Vehicle Code in 1947, Stats.1947, p. 2767, chap. 1256, and accordingly this amendment and the amendment of section 468 in the same year, changed the rule there announced. By the amendments to these sections no change in the principle set forth in the cited cases is indicated in reference to a ‘State Highway’. Section 468, requiring that appropriate signs the erected, is a binding obligation upon the State, enacted undoubtedly with a view to easing the burden of the motoring public from the strain of determining a business or residential district by exact measurement without the aid of speed restriction signs.

The jury was, therefore, not in possession of all of the surrounding facts nor was it fully instructed as to the law pertaining to the permissible speed limit at the place here involved. It might be well said that, under the facts and law submitted to it, the jury believed the permissible speed was 25 miles per hour and that plaintiff, as contended by defendant, was violating the law in exceeding that speed limit and that such violation constituted negligence contributing proximately to the cause of his injuries, when in truth and in fact, the prima facie speed limit might have been established as 55 miles per hour for that district.

Since the trial court refused to permit plaintiff to offer evidence on this subject, and since its failure to give the proffered instructions in reference thereto was error, which we conclude was prejudicial under the facts related, and since the evidence as to contributory negligence of plaintiff in respect to proper lights not being maintained on plaintiff's motorcycle at the time was somewhat unsatisfactory, we conclude that plaintiff's motion for a new trial should have been granted.

Judgment reversed.

GRIFFIN, Justice.

BARNARD, P. J., and MUSSELL, J., concur.

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