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

REYNOLDS et al. v. FILOMEO et al.

No. 14597.

Decided: March 12, 1951

Brown, Smith & Ferguson and Jacqueline Taber, all of Oakland, for appellants. Clark & Heafey and Richard Belcher, all of Oakland, for respondents.

Plaintiffs appeal from a judgment of nonsuit in an action for personal injuries, tried before a jury.

Question Presented.

Is there any substantial evidence of negligence of defendant (a) as to lack of lights, (b) as to lack of due care due to speed, and (c) as to failure to avoid the accident.


‘As this is an appeal from a judgment of nonsuit, such judgment can be supported only if, ‘disregarding conflicting evidence, and giving to plaintiff's evidence all the value to which it is legally entitled, indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff.’' Andre v. Allynn, 84 Cal.App.2d 347, 348, 190 P.2d 949, 950.

The facts most favorable to plaintiffs will be set out, but, where necessary in order to understand fully the case, the testimony of both sides will be given.

Originally the complaint included as a defendant Joseph Brenner, the driver of the car in which the plaintiffs were riding, charging that he turned in front of defendant's oncoming Buick with ‘a reckless disregard of probable consequences and of the safety of these plaintiffs.’ Prior to the trial the action was dismissed as to him without prejudice. He appeared as a witness for plaintiffs.

On the night of November 5, 1948, at approximately 11:15, Joseph Brenner was driving his Ford coupe easterly on highway 24 towards Concord. The highway was divided by a white line into two lanes, each twelve feet wide. Brenner was a good driver, the car was in good shape mechanically, the windshield was unobstructed, and the headlights were lit. Plaintiff James Reynolds sat beside the driver, while plaintiff Vernon was sleeping on the rear seat, and therefore was unable to give any version of the accident. At the same time defendant John T. Filomeo1 was driving his Buick westerly on the same highway, at a speed which he estimated to be 45 to 50 miles an hour. The atmosphere was clear and the surface of the highway dry. No other traffic was approaching from the east. The evidence is equivocal as to whether there was a car following the Ford approximately a quarter of a mile to its rear. There was a car ahead of the Ford which passed the Buick approximately at the intersection of highway 24 and Meadow Lane. At and westerly of this intersection, and on the north side of the highway (the opposite side from that on which was the Ford) was an area fronting the ‘Four Corners Cafe,’ where there was a lighted neon sign and a lighted billboard. As the Ford approached this area, either Brenner or James said, ‘Let's go in here to the cafe.’ Brenner, intending to turn left across the highway and enter the off-street parking area fronting the cafe, slowed the Ford to ten miles per hour. James turned to look to the rear, and just before the turn was started he looked up the road and saw no car approaching. When asked if he was looking up the road for approaching vehicles he stated, ‘Not particularly, although I always look for them, I knew he [Brenner] would look so I just glanced up the road. Q. In other words, you were looking for him to look for vehicles approaching in the opposite direction, is that right? A. Yes.’ Brenner looked up the highway ‘and didn't see a thing.’ Brenner ‘thinks' he gave a left-hand signal. He turned left and just as the front wheels of the Ford reached the northern border of the highway strip the Buick struck it slightly to the rear of its right door. The occupants of the Ford were thrown out and plaintiffs severely injured.

Defendant was familiar with the intersection and the buildings surrounding it as he passed it daily going to and from work. As he was about 125 yards east of the intersection, he saw the headlights of two cars approximately 100 feet apart, coming toward him in the eastbound lane. When he reached the intersection the first car passed him and the Ford was approximately 150 feet in front of him. He could not estimate its speed. He did not slacken speed at or before the intersection. When he was twenty to fifty feet from the Ford he claims it suddenly turned in front of him. He did not sound his horn, nor attempt to pull to either side. He applied his brakes and skidded 24 feet straight forward to the point of impact (approximately 108 feet west of the intersection). His headlights were lighted and his car in good mechanical condition. The Ford was thrown forward and in a semicircle by the force of the collision, coming to rest off the road and facing south. Brenner did not see the Buick before it struck. James did not see it until it was about a foot away, when ‘all at once I noticed this light to my right.’ The court granted a nonsuit on the ground that there was no evidence of defendant's negligence.

Was Defendant Negligent?

(a) Lights.

Plaintiffs first contend that there was evidence to support a finding that the headlights of defendant's car were unlighted. There can be no question that Brenner was negligent unless defendant was driving with his lights off. The evidence clearly shows that at a point approximately 108 feet from an intersection he made a left turn in the face of an approaching car. Brenner's negligence, of course, is not imputable to plaintiffs, his guests. King v. City of Long Beach, 67 Cal.App.2d 1, 153 P.2d 445. Plaintiffs contend that the testimony of James that, although he was not particularly looking for approaching vehicles, he looked up the road and saw none, and Brenner's testimony that he, too, looked and did not see anything, and that then practically at the instant of collision James saw the lights, would justify a jury in inferring that defendant, although he testified to the contrary, was driving with his lights off and suddenly switched them on. Therefore, say they, that question should have been left to the jury. We find it difficult to distinguish this situation from that in railroad cases where it has been held that where in spite of positive testimony that a signal warning was given, witnesses at the scene testify that they did not hear it, their failure to hear ‘is some evidence that no such signal was given’ and the resolving of the conflict is for the jury. Thompson v. Los Angeles & S. D. B. Ry. Co., 165 Cal. 748, 752, 134 P. 709. In Saphire v. Los Angeles Transit Lines, 99 Cal.App.2d 880, 222 P.2d 956, it was held that the testimony of the respondent that no bell was sounded was sufficient. To the same effect, McKinley v. Southern Pacific Co., 80 Cal.App.2d 301, 306, 181 P.2d 899. The court should have left to the jury the question of whether defendant's lights were on.

(b) Speed.

Plaintiffs contend first that the area where the ‘Four Corners Cafe’ stands is a business district as defined by section 89 of the Vehicle Code, and therefore the speed limit is 25 miles an hour. The testimony of the engineer as to the buildings in the vicinity could bring the area within the definition of a business district as set forth in section 89. Section 511 of the Vehicle Code provides that the prima facie speed limit in a business district is 25 miles per hour. This section further provides that excess of that speed is prima facie unlawful unless defendant establishes that such speed did not constitute a violation of the basic rule of section 510, which reads: ‘No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for 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.’ Prior to 1947 section 758 of the Vehicle Code provided that every highway should be conclusively presumed to be outside of a business or residence district unless its nature was clearly shown and it was signposted as required by the code. In that year, the section was amended and now reads: ‘In any action involving the question of unlawful speed of a vehicle upon a highway which has been signposted with speed restriction signs of a type complying with the requirements of this code, it shall be presumed that existing facts authorize the erection of such signs and that the prima facie speed limit on such highway is the limit stated on such signs. This presumption may be rebutted.’

Plaintiffs contend that the 25 mile an hour speed limit applies if in fact the number of buildings in the area brings it within the definition of section 89. Defendant contends that it applies only if that condition exists and the area is signposted. It has been held that ‘when the nature of the district is in dispute the question becomes one of fact and is not one for judicial notice.’ Noble v. Kertz & Sons Feed & Fuel Co., 72 Cal.App.2d 153, 158, 164 P.2d 257, 259.

The Noble case, supra, Cunningham v. Cox, 126 Cal.App. 685, 15 P.2d 169, and Cavalli v. Luckett, 40 Cal.App.2d 250, 104 P.2d 708, are cited by defendant for the proposition that unless signposted the area cannot be considered a business district even though it has the required number of buildings. These cases are not in point as they are based on section 758 (and its predecessor section) as it read prior to the 1947 amendment. By the amendment, the conclusive presumption was done away with and a rebuttable presumption substituted if the area is signposted. By this action of the Legislature, it is obvious that unless signposted the question of whether or not a given area comes within the code definition of business district is a matter of fact to be determined at the trial. The highway patrolman's testimony that the area was in a 55 mile zone was his legal conclusion on the subject and was not binding on the jury, whose duty it was to determine that very question. His testimony that there were no speed restriction signs in the area was, of course, pertinent. Even under the old law the mere fact of signposting an area was not sufficient to establish it as a business district. It was necessary for the jury to find additionally that the necessary number of buildings existed to bring it within the code definition. Noble v. Kertz & Sons Feed & Fuel Co., supra; McGough v. Hendrickson, 58 Cal.App.2d 60, 136 P.2d 110; see cases collected in 2 Cal.Jur. 10-yr. Supp., p. 274, § 182. The amendment concerning signposting in nowise affected this requirement. It merely does away with the presumption as to the character of the area when not signposted. Thus, the character of the district should have been left to the jury to determine, whether, first, it was a business district, and secondly, if it was whether defendant's admitted failure to reduce his speed to 25 miles per hour was a proximate cause of the accident.

Plaintiffs also contend that, assuming the area to be a 55 mile zone, it was not prudent and was a violation of the basic speed law for defendant, who knew the character of the area, to drive into it at the speed he testified he was driving, forty-five to fifty miles per hour. Defendant knew that adjoining the intersection on the northwest was an area of about 300 feet which constituted an entrance to and exit from the Four Corners Cafe, an adjoining service station and a building. Except for these structures the area is open farming country. He knew, of course, that the restaurant was open for business at that time of night. The lights showed that it was. Defendant admittedly saw two cars approaching the intersection from the west as he approached it from the east. Whether or not as a prudent person he should have anticipated the probability that one or the other might turn either at the intersection or to the cafe was a question for the jury. The area of the cafe and service station was well lighted. Whether defendant should have noticed that the approaching Ford had slowed down, if it did, was likewise for the jury to determine.

Again, assuming the area to be a 55 mile one, it was for the jury to determine whether defendant's testimony as to his speed was true. Taking into consideration the necessary reaction time it would take defendant to realize the necessity for acting, the skid of 24 feet, the force of the impact, the injuries to both cars and all the circumstances, it cannot be said as a matter of law that defendant was not exceeding 55 miles per hour.

Defendant points out that there was no direct testimony that his speed was different than he testified it was, and cites Corcoran v. Pacific Auto Stages, Inc., 116 Cal.App. 35, 2 P.2d 225, to the effect that it will not be presumed that defendant was violating the law. It does not require direct testimony to overcome defendant's testimony if the indirect or circumstantial evidence does so. Moreover, such circumstances may overcome the presumption that defendant was obeying the law. There were circumstances here by which the jury might have so concluded. As said in Spolter v. Four-Wheel Brake Service Co., 99 Cal.App.2d 690, 222 P.2d 307, 310, quoting from Mah See v. North American Accident Ins. Co., 190 Cal. 421, 426, 213 P. 42, 26 A.L.R. 123: “This court has frequently held that, even though all the facts are admitted or uncontradicted, nevertheless, if it appears that either one of two inferences may fairly and reasonably be deduced from those facts there still remains in the case a question of fact to be determined by the jury * * *.”

Failure To Avoid the Accident.

Of course, no one suddenly confronted with an unexpected peril is to be held responsible for omitting precautions which hindsight might show would have avoided the accident. He is required only to do what a prudent person would do under the circumstances. ‘In every such emergency it is a question for the trier of fact to determine whether the person acted with reasonable care under all the circumstances.’ De la Motte v. Rucker, 55 Cal.App.2d 226, 233, 130 P.2d 444, 448. Whether or not defendant could have avoided the accident depends partly upon how much of his story the jury might believe. Moreover, we cannot say, as a matter of law, that under the circumstances of this case, a reasonably prudent person, after the time when a jury would find that defendant should have realized the danger, would or would not have attempted to turn his car in an endeavor to avoid the accident, or would have succeeded in avoiding it had he turned his car. These were all questions for the trier of the facts. See Betschart v. Steel, 61 Cal.App.2d 517, 143 P.2d 81. Cases like Curry v. Williams, 109 Cal.App. 649, 293 P. 623; De la Motte v. Rucker, supra, 55 Cal.App.2d 226, 130 P.2d 444; Sinclair v. Harp, 18 Cal.App.2d 167, 63 P.2d 876, where the accident was caused by one vehicle turning abruptly in front of an oncoming car are not in point here as their facts are not similar. In Podeszwa v. White, 99 Cal.App.2d 777, 222 P.2d 683, where the defendant was held liable, the facts concerning the failure of the defendant to swerve his truck and thereby avoid the accident were more nearly similar to those in our case. However, each case depends upon its own facts and the inferences that may reasonably be deduced from them.

If we were eprmitted to weigh the evidence on an appeal of this kind, we possibly might find that the preponderance of the evidence shows no negligence of defendant. However, there is ‘evidence of sufficient substantiality to support a verdict in favor of the plaintiff.’ Andre v. Allynn, supra, 84 Cal.App.2d 347, at page 348, 190 P.2d 949, at page 950.

The judgment is reversed.


1.  Mrs. Filomeo was joined as a defendant because of alleged joint ownership of the car. Unless otherwise noted, ‘defendant’ will refer to John Filomeo.

BRAY, Justice.

PETERS, P. J. and WOOD, J., concur.

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