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District Court of Appeal, First District, Division 2, California.

Nadine GIGLIOTTI, a minor, etc., et al., Plaintiff and Appellant, v. Joseph Ernest NUNES, Defendant and Respondent.

Arthur MATTS, a minor, etc., et al., Plaintiffs and Appellants, v. Joseph Ernest NUNES, Defendant and Respondent.

Joseph Ernest NUNES, Cross-Complainant and Respondent, v. Rhoda GIGLIOTTI, Cross-Defendant and Appellant.

Civ. 15821, 15820.

Decided: October 18, 1954

James F. Boccardo, San Jose, Edward J. Niland, San Jose, of counsel, for appellants. Campbell, Custer, Warburton & Briton, Frank L. Custer, San Jose, W. R. Dunn, Burlingame, of counsel, for respondent.

Plaintiff and cross-defendant appeal from judgment entered against plaintiffs and in favor of defendant and cross-complainant after jury verdict in two negligence actions which were consolidated for trial. All causes of action arose out of a collision on November 7, 1947 between an automobile and a truck. All of the plaintiffs who were minors at the time, were riding in the automobile as guest passengers. Defendant and cross-complainant, Joseph Nunes, owned and operated the truck.

Nunes' answer denied negligence generally, and set up the affirmative defenses of contributory negligence, assumption of risk, imputed negligence on the part of the driver of the automobile, unavoidable accident, res judicata and estoppel. Plaintiffs' motion to strike the latter two defenses was granted. Nunes filed a cross-complaint for damages to his truck against the minor plaintiffs in both actions and also brought in as an additional cross-defendant, Rhoda Gigliotti, mother of the plaintiffs Nadine and Jean Gigliotti. The cross-complaint alleged that the driver of the automobile, Leonard Walters, had negligently operated said vehicle while acting as the servant, agent and employee of the cross-defendants.

Motions for nonsuit as to the minor cross-defendants were granted at the conclusion of the trial. The motions of Rhoda Gigliotti for nonsuit and directed verdict on the cross-complaint were denied, as was her motion for permission to file an amendment to her answer to the cross-complaint to set up the failure of Nunes to file a cross-complaint in a previous action arising out of the same accident, which had been previously brought against him by Rhoda Gigliotti.

The verdict of the jury was in favor of defendant and against plaintiffs, and in favor of Nunes on his cross-complaint against Rhoda Gigliotti in the sum of $300. Motions of plaintiffs and cross-defendant Rhoda Gigliotti for a new trial, made upon all the statutory grounds were denied.

The accident giving rise to these suits, occurred at about 3 p. m. on November 7, 1947, in San Jose, at the intersection of Bayshore Highway and Berryessa Road. The Bayshore at this point runs north and south and is divided into three lanes, each eleven feet wide. On each side is an asphalt shoulder nine feet in width. Berryessa Road crosses Bayshore at about a 45 degree angle, running from southeast to northwest, and is divided into two lanes, each nine feet wide. Berryessa Road widens out into a curve on each side where it joins the shoulders of Bayshore Highway. Approximately forty feet south of the center of the intersection, railroad tracks cross Bayshore at an angle, running parallel to Berryessa Road. On each side of the tracks, about ten or twelve feet distant therefrom, and parallel thereto, are double white lines extending across the center and right lanes of each approach to the crossing. (Exhibit C).

Respondent Nunes engaged in the business of transporting livestock. He owned and operated a Peterbilt truck which was about 32 feet in length, and attached to the truck by a tie-bar was a trailer, 23 feet ten inches in length equipped with cattle racks. The overall length of this equipment was 59 feet, 10 inches, and it weighed more than 19,500 pounds. Nunes' home and shop was located on the east side of Bayshore about 700 feet north of the intersection of that highway with Berryessa Road. At the time of the accident respondent was on his way from his home to the Kaufman Milling Company which was located on Berryessa Road, about one mile east of Bayshore.

The car in which plaintiffs and cross-defendant Mrs. Rhoda Gigliotti were riding was a 1946 two door Dodge sedan, to which was attached an empty horse trailer. The party had stopped at the home of one of plaintiffs which was just off Bayshore Highway and about a mile and a half south of Berryessa Road, and were on their way to the Gigliotti ranch in Milpitas when the accident happened.

At the time of the accident Leonard Walters was driving the Dodge, Mrs. Gigliotti was in the front seat beside him, and seated next to her was plaintiff Arthur Matts. The three girls were in the back seat. As a result of the collision Leonard Walters was killed, and Mrs. Gigliotti and the minor plaintiffs sustained several personal injuries.

Respondent testified that he was in the center lane as he approached the Berryessa intersection, that a ‘good block’ therefrom he put the mechanical arm signal out for a left turn and kept it there. He was driving at between 12 to 15 miles per hour, and slowed down before reaching the intersection. He saw two groups of automobiles approaching from the south, the first consisting of 2 or 3 cars traveling at ‘ordinary’ speed, 40 to 50 miles per hour, and they were an ‘ordinary driving distance’ apart. The second group consisted of 3 cars, the first of which was 700 to 800 feet behind the last car of the first group. He paid no attention to the speed of the cars in the second group. He was 200 or 300 feet from the intersection when the first car of the first group reached it. He stopped or nearly stopped when he reached the intersection just as the last car of the first group passed through the intersection. The first car of the second group was about 800 feet from the intersection. He looked in his rear view mirror, then put the truck in gear to begin the left turn. Just before he started the left turn he saw the Dodge and trailer come out from behind the first two northbound cars and pass them in the middle lane. At a previous trial he had testified that he had already made part of his turn before he looked to the right again. The Dodge was 600 or 700 feet from Berryessa when it passed the two cars. It pulled back into the east lane. When he was in the center of the east lane he saw the Dodge about 300 to 350 feet away and estimated its speed at 65 miles per hour. He started to apply his brakes, knowing he could not get out of the way in time. The Dodge did not reduce its speed, but at about the railroad tracks swerved to the right in an attempt to go in front of the truck, but the vehicles collided when the front of the truck was about 2 feet east of the Bayshore pavement. He did not know if his truck was moving or stopped at the time of impact. If moving, it could not have been at more than 3 miles per hour. He had traveled about 8 feet from the time he had observed the Dodge 300 to 350 feet distant. The truck had traveled from 12 to 15 feet at 3 miles per hour from the point where it began the left turn into the east lane to the point of impact. The left front of the Dodge got under the truck's bumper, and moved the truck a little distance. The vehicles came to rest with about three-quarters of the left side of the truck's bumper imbedded in the car. The truck was moved 3 or 4 feet by the impact. Respondent denied that he had told anyone that he had never seen the Dodge.

The witness Fowler, who testified for respondent, stated that he was at the stop sign on Berryessa at the east side of Bayshore when he saw respondent's truck and trailer approaching. Fowler was an employee of Kaufman Milling Company, and had known respondent for some time. Both Fowler and his wife testified that the left turn signaling device was straight out indicating a left turn. The signaling device was pointing downward after the accident. (Plaintiff's Ex. 12) Fowler saw the Dodge first about 500 feet south going at about 55 miles per hour and did not see any cars go through the intersection before the Dodge. The truck had been traveling 10 to 12 miles per hour and started to turn without any change in speed. The Dodge was then 150 to 200 feet from the intersection still traveling at the same speed. As soon as the truck started to turn Fowler knew the accident was going to happen because the Dodge was so close that respondent could not get his 60 foot truck and trailer across in front of it.

Officer Carmichael of the highway patrol testified that Fowler told him at the scene of the accident that he could give him no information because he had been watching the truck make its turn and had not seen the Dodge.

Clifford Whittaker testified for plaintiffs that he was driving a truck easterly on Berryessa Road toward Bayshore and first saw respondent's truck north of the intersection traveling at 20 to 25 miles per hour. It slowed down as it approached the intersection, and two northbound cars passed through the intersection as the truck continued slowing down. Just after the second car passed, the truck began to turn right in front of the Dodge. The Dodge was near the railroad tracks about 80 feet south of the intersection when the truck began the turn, and was moving at between 40 and 45 miles per hour. It veered to the right when the truck began to turn and traveled about 64 feet to the point of impact. Its speed was then between 35 and 40 miles per hour. The left front bumper of the truck hit the left front side of the car and moved the car sideways 4 or 5 feet. The Dodge left tire marks 4 or 5 feet in length extending easterly from the point of impact. It had left skid marks behind it to the south. The witness said that he asked respondent why he pulled out in front of the Dodge, and he replied that he didn't see it.

Another truck driver who witnessed the accident also testified that he heard respondent state that he had let two cars go by, but hadn't seen the Dodge. The witness Aiello who arrived at the scene after the accident had taken place also testified to a similar statement by respondent. Perry, who was driving for some distance behind respondent, and was still behind him when he started the left turn testified that he saw no mechanical signal or arm signal indicating that the truck was going to turn left. Just before it began the left turn, the witness saw the Dodge at about the railroad tracks and traveling about 40 to 45 miles per hour.

Arthur Matts testified that the speed of the Dodge was about 40 miles per hour about a block from the scene of the accident. He first noticed the truck about 150 feet north of the intersection when the Dodge was 150 feet south of the intersection. The Dodge was about at the railroad tracks when the truck began to turn left. Mrs. Gigliotti placed the speed of the Dodge at about 35 to 40 miles per hour.

There was much more testimony by witnesses for both parties, but from that reviewed above it can be seen that while the evidence was adequate to support a verdict in favor of respondent, there is considerable conflict and if the verdict had been in favor of plaintiffs it would have been supported by substantial evidence.

Appellants' first argument for reversal is that the trial court committed prejudicial error in refusing to instruct on the presumption that the deceased driver of plaintiffs' car had exercised due care. It is true, as appellants say, that the evidence as a matter of law did not establish that the deceased driver, Walters, was guilty of negligence. The evidence herein would have adequately supported a verdict for plaintiffs. This, then, is not one of those cases in which an instruction on the presumption is ruled out because the party by his own evidence had dispelled the presumption by establishing negligence on the part of the deceased. Carlton v. Pacific Coast Gasoline Co., 110 Cal.App.2d 177, 183, 242 P.2d 391; Karstensen v. Western Transportation Co., 93 Cal.App.2d 435, 438, 209 P.2d 47; Tice v. Kaiser Co., 102 Cal.App.2d 44, 52, 226 P.2d 624.

The trial court not only refused to instruct on the matter but also, appellants complain, refused to allow any argument, for it directed the jury to disregard a statement of plaintiffs' counsel during argument that Walters was presuumed to have exercised ordinary care.

If this were a case which was brought for damages for the death of the driver Walters, or against his estate, clearly the presumption would be applicable and it would be prejudicial error to refuse to give it, as was held recently by this court in the case of Graf v. Garcia, 117 Cal.App.2d 792, 256 P.2d 995. In such cases the negligence of Walters or his contributory negligence would clearly be issues.

It is respondent's view that since the jury was instructed that ‘The negligence, if any, of Leonard Walters cannot be imputed to plaintiff’, there was no issue of the negligence of Walters as far as the minor plaintiffs were concerned. Any negligence of Walters in causing the accident could not be imputed to the minor plaintiffs by the jury, and it must be presumed that in this regard they followed the law as given to them by the court. (24 Cal.Jur. 795–796, sec. 73.)

But appellants strongly urge that Walters' conduct was an important factual issue in determining whether the conduct of respondent was negligent. One of the vital issues in the case concerned the conduct of the driver of the car in which plaintiffs were riding, for respondent's conduct cannot be considered in a vacuum, but must be judged in relation to what he should have observed in regard to Walters' speed, distance, and other factors. Presumptions are evidence, and this presumption which would be some evidence for appellants can only come before the jury if the instruction is given. If the presumption had been before the jury and they were entitled to consider that Walters had been driving with ordinary care and in obedience to law, they might have concluded that Walters was not driving over 45 miles per hour, that he was maintaining a proper lookout, that he reacted with ordinary care when he first observed respondent was going to make a left turn in front of him; that since the Dodge began to leave brake marks 30 or 40 feet before the point of impact, and if the normal reaction distance at this speed is approximately 50 feet, Walters must have been less than 100 feet from the point of impact when respondent first indicated he intended to turn. The jury could conclude therefore that respondent was guilty of attempting to negotiate a left turn with his slow moving equipment which was 60 feet in length when another vehicle was approaching the intersection so closely as to constitute an immediate hazard. Hence his negligence in violating Sec. 551 of the Vehicle Code would be a proximate cause of the plaintiffs' injuries.

There is no question but that a presumption is independent evidence which is sufficient to create a conflict in the evidence, and which alone may support a finding even if conflicting testimony is otherwise uncontradicted. In re Estate of Pitcairn, 6 Cal.2d 730, 734, 59 P.2d 90; Henderson v. Drake, 118 Cal.App.2d 777, 787, 258 P.2d 879; Scott v. Burke, 39 Cal.2d 388, 394–397, 247 P.2d 313.

Appellants contend that the presumption was important therefore in relation to the question of proximate cause. Respondent argues that no presumption as to the conduct of Walters could serve to establish the liability of respondent, citing Greene v. Atchison, etc., Ry. Co., 120 Cal.App.2d 135, 260 P.2d 834, wherein the court cited with approval the case of Darby v. Henwood, 346 Mo. 1204, 145 S.W.2d 376, 379, to the effect that the presumption that the deceased was in the exercise of due care does not carry with it the presumption that defendants were negligent. It is unquestionably the correct rule that the presumption cannot cast upon respondent the burden of proving his freedom from negligence. But appellants' argument is not that respondent might be found negligent had the instruction been given because the fact that the accident occurred shows someone must have been negligent, but rather than the course of conduct of the deceased driver was an important factual element in assessing respondent's reaction to that conduct in determining whether or not respondent was negligent.

It appears to be a very reasonable argument that the conduct of Walters had an important bearing on the conduct of respondent. In Graf v. Garcia, supra [117 Cal.App.2d 792, 256 P.2d 997], it is said that ‘where the question concerns the conduct of a person who is dead the presumption of the exercise of due care is operative unless the testimony of the witnesses produced by the party who would benefit by the presumption is ‘wholly irreconcilable’ with the presumption * * *.'

Appellants have not been able to find any case, however, where the courts have extended this presumption to this type of case. The cases where such instructions have been given are those wherein the plaintiffs are suing for recovery for the death of the deceased or where the estate of the deceased is being sued for his alleged negligence. There is nothing in Section 1963, Code of Civil Procedure, which limits its application to the conduct of persons whose injuries or whose negligence form the basis of the action, so there is logically no reason why the presumption should not be so extended if appellants' argument is sound. Since presumptions are evidence there seems no sound reason why such evidence if it becomes important in a case, is admissible if it concerned the conduct of one whose conduct is imputed to the party, but is inadmissible if it is concerned with the conduct of another person whose actions are important evidence on behalf of a party to the case.

Moreover, the presumption was clearly applicable to the cross-defendant Rhoda Gigliotti, for Walters' negligence could be imputed to her, and it was so imputed by the jury in view of the verdict against her on the cross-complaint. The refusal of the instruction would clearly be prejudicial error as to her, if it was offered on her behalf. The instruction was offered on behalf of both the minor plaintiffs and cross-defendant. We conclude that it was prejudicial error for the court to refuse to instruct the jury on the presumption of due care on the part of the deceased driver. On the evidence this was a close case so the failure to give this instruction becomes prejudicial.

Respondent argues that in any event the instruction as offered was erroneous in that it would have confused the jury on the matter of burden of proof. The instruction as offered was as follows:

‘I instruct you that there is a legal presumption that the deceased, Leonard Walters, was obeying the law at the time and place of the accident in question, and that he was exercising care for his own concerns at the time and place of said accident. This presumption is in itself a species of evidence, and it shall prevail and control your deliberations until and unless it is overcome by satisfactory evidence. This presumption is disputable, but unless it is adequately and sufficiently controverted, you, the jury, are bound to find in accordance with the presumption that the deceased, Leonard Walters, was obeying the law and was exercising ordinary care for his own concerns and was not negligent at the time and place of the accident. It is evidence in the case and is sufficient in and of itself to support a verdict of (sic) finding on your part that the said deceased was careful at the time and place of the accident in question.’

Respondent's attack is on the language ‘shall prevail and control your deliberations unless and until it is overcome by satisfactory evidence.’ He says that the jury could only have understood this to mean that defendant had the burden of ‘overcoming’ the presumption by a preponderance of the evidence, and that there is no such burden on a defendant. Donovan v. Security First Nat. Bank, 67 Cal.App.2d 845, 155 P.2d 856; In re Estate of Hansen, 38 Cal.App.2d 99, 116, 100 P.2d 776. However, in the case of Westberg v. Willde, 14 Cal.2d 360, 94 P.2d 590, 593, the identical language—“shall prevail and control your deliberations until, and unless it is overcome by satisfactory evidence” was used, and it was there said that this language was approved in an earlier case, Olsen v. Standard Oil Co., 188 Cal. 20, 25, 204 P. 393. Other cases have used the word ‘overcome’ as synonymous with ‘contradict’, ‘rebut’, ‘dispute’, or ‘refute’. See Braun v. Brown, 14 Cal.2d 346, 94 P.2d 348, 127 A.L.R. 773; Simonton v. Los Angeles Trust & Sav. Bank, 205 Cal. 252, 270 P. 672; McDonald v. Hewlett, 102 Cal.App.2d 680, 228 P.2d 83, 24 A.L.R.2d 1281. This instruction says nothing about burden of proof, a subject upon which the jury was adequately instructed, so there would seem to be no weight to respondent's argument that it would confuse the jury as to which party had the burden of proof in the case. Nor is respondent's argument valid that it would have been in conflict with the presumption of negligence on the part of Walters arising from the evidence that Walters violated Vehicle Code, Sections 510, 515.5 and 551, subd. (b). Respondent's evidence as to such violations was controverted by other evidence. The jury was fully instructed as to the effect of such violations if proved. If proved, then such finding of fact would controvert or overcome the presumption of due care.

Appellants maintain that prejudicial error was committed in the refusal to instruct the jury at their request, that plaintiffs were, as a matter of law, free from any contributory negligence.

Appellants maintain that the evidence was insufficient to warrant the submission of the issue of contributory negligence to the jury, and in their reply brief note that defendant has not denied that the evidence wholly failed to show any contributory negligence on the part of plaintiffs. They state that at the trial counsel for defendant attempted to secure evidence of contributory negligence in his cross-examination of two of the plaintiffs but was ‘unable to elicit any testimony legally sufficient to justify an inference of contributory negligence,’ but says that it is by no means certain that the jury was cognizant of that fact.

It is the general rule as stated in 24 Cal.Jur. 833, sec. 96, that instructions ‘excluding or ignoring pleaded issues or defenses which are supported by evidence are prejudicially erroneous.’ (Emphasis ours.) Conversely, it would appear not to be error to exclude or ignore defenses not supported by evidence, as is admittedly the situation herein.

Appellants contend that error was committed by the trial court in refusing to give an instruction on Vehicle Code, Sec. 670(a) at their request. That section states the distances at which brakes on motor vehicles must be capable of bringing the vehicle to a stop at speeds of 10, 15, 20, 25, 30, 35, 40 and 45 miles per hour. They did not request that the court instruct concerning the violation of this statute, since their purpose in asking the instruction was to inform the jury of the maximum stopping distances, in order that they might determine what respondent had a right to assume concerning the operation of other vehicles. They argue that one driver has no right to assume that another driver will be able to stop in less than the legally allowable limits established by this section.

Appellants admit that this case did not present any legitimate issue concerning the condition of the brakes of either vehicle and concede that an instruction to the effect that a violation of this section would have been negligence per se would have been improper. Ketchum v. Pattee, 37 Cal.App.2d 122, 98 P.2d 1051. In Duehren v. Stewart, 39 Cal.App.2d 201, 210, 102 P.2d 784, it was held not error to refuse to instruct on Sec. 670(a) in a case where appellant contended that he wished to show thereby that he could have stopped and did stop his car within the distance required by law. The court stated that the sufficiency of the brakes on appellant's car was not in question, and appellant testified that his brakes were in satisfactory condition and offered no testimony to show the exact distance within which his car would stop at any given speed. There was therefore no error in refusing to give this instruction.

Appellants note that this court has frequently applied this section in deciding whether the evidence was sufficient to justify a conclusion that the driver had a last clear chance to avoid the accident. Lebkicher v. Crosby, 123 Cal.App.2d 631, 638, 267 P.2d 361; Buck v. Hill, 121 Cal.App.2d 352, 263 P.2d 643; Hopkins v. Carter, 109 Cal.App.2d 912, 916, 241 P.2d 1063. When a knowledge of this section will tend to aid a jury the trial court should, if requested, instruct upon it. Rednall v. Thompson, 108 Cal.App.2d 662, 667, 239 P.2d 693.

We believe that the instruction as requested, would not have accomplished the purpose for which appellants contend it was requested, but would have misled the jury into thinking that there was an issue as to whether the accident was caused by defective brakes, whereas appellants admit there was no such issue. Simply stating the statutory requirements as to stopping distances for adequate brakes without noting reaction time for drivers, would not fairly present to the jury the purpose which appellants had in mind.

It is contended that respondent's counsel was guilty of misconduct in directing the jury's attention to the verdict in favor of defendant in another trial which involved different plaintiffs. They say that throughout the trial defendant's counsel sought to convey to the jury the idea that the liability of Nunes had been previously adjudicated and a verdict rendered in his favor.

On the voir dire examination counsel for respondent asked a prospective juror if he had heard anything about the trial of the companion matters. The juror replied that he had not, and counsel then asked if it should develop during the trial that verdict was rendered in favor of defendant in the previous trial, would that have any bearing on the juror's consideration in this trial. Counsel for appellants assigned the asking of the question as misconduct, stating that there was no previous trial involving these plaintiffs. The court overruled the objection. As pointed out by respondent, it seems obvious that the reference to the previous trial in the question objected to was simply a development of the question immediately preceding as to the juror's knowledge of the trial of the companion matters. This would appear to have been a legitimate subject of inquiry. This question appears not to have been prejudicial misconduct, and this is the only instance where any reference by counsel for respondent was assigned as misconduct by appellant's counsel. If alleged misconduct is to be ground for a reversal it should have been assigned as misconduct when it occurred with a request to the court for an instruction. People v. Harris, 87 Cal.App.2d 818, 198 P.2d 60; 3 Cal.Jur.2d 646, 647.

Appellants cite between 50 and 60 references made during the trial to the ‘previous trial’, ‘last trial’, ‘former trial’ by counsel for respondent. But they point to no assignment of misconduct. Respondent is able to note similar references made during the trial by counsel for appellants. These references appear to have been unavoidable in view of the fact that many of the witnesses were the same in both cases, and both counsel used testimony from the previous trial in efforts to contradict and impeach these witnesses. The question of misconduct was reviewed by the trial judge on the motion for new trial, and it does not appear that he abused his discretion in deciding that there was no prejudice to appellants on this score. Rather v. City & County of San Francisco, 81 Cal.App.2d 625, 184 P.2d 727.

It is the final contention of appellants that prejudicial error was committed in refusing to permit cross-defendant Rhoda Gigliotti to plead or prove that the cross-complaint against her was barred by Sec. 439, Code of Civil Procedure. Undoubtedly this was the type of claim that respondent Nunes was required to set up in the earlier action brought against him by Rhoda Gigliotti for damages arising from this same accident. Schrader v. Neville, 34 Cal.2d 112, 114, 207 P.2d 1057.

After the parties had rested, cross-defendant Rhoda Gigliotti offered the following amendment to set forth a second defense:

‘As and for a Second, Separate and Distinct Defense to said Cross-complaint, cross-defendant alleges: That said cross-Complainant is estopped from asserting the matters set forth in said Cross-Complaint under the provisions of Section 439 of the Code of Civil Procedure of the State of California; that the issues and matters set forth in said Cross-Complaint arise out of the same transaction and accident as was litigated in a prior action entitled, ‘Rhoda Gigliotti and Jean Gigliotti, a minor, by Tony A. Gigliotti, her Guardian ad Litem, Plaintiffs, versus Joseph Ernest Nunes, First Doe and Second Doe, Defendants', and numbered 69532 in the files of this Court, and that in said prior action said Cross-Complaint was entitled to, but failed to, assert the matters now set forth in said Cross-Complaint.’

Respondent criticizes the form of the proffered amendment, noting that it alleges that the issues on the cross-complaint were litigated, not that they were adjudicated, in a prior action, and that a final judgment should have been pleaded. Olds v. Peebler, 66 Cal.App.2d 76, 151 P.2d 901; Todhunter v. Smith, 219 Cal. 690, 695, 28 P.2d 916. This seems to be a rather technical objection since the file of this prior action was offered in evidence by respondent as he was trying to prove that the judgment was res judicata on the issue of defendant's negligence, and an adjudication of the negligence of the driver Leonard Walters. The court, however, pointed out that it was also consistent with no negligence on the part of either driver and the offer of proof was denied. Later the file was again offered in evidence as Defendant's Exhibit F for identification to which counsel for respondent objected. The court reserved its ruling on the matter, and commented that if it allowed the records in evidence, it might force defendant out of court on his cross-complaint, noting that apparently it was conceded that the two prior trials arose out of the same accident.

Respondent contends that no abuse of discretion is shown since the cross-complaint was filed on January 25, 1950 and the motion to amend was made on March 5, 1952 after the parties had rested and the case was ready for submission to the jury. If the amendment had been allowed, cross-complainant would have had time to answer by demurrer and argue the demurrer necessitating a continuance. He cites several cases where it was held not an abuse of discretion to deny an amendment. In San Joaquin Valley Bank v. Dodge, 125 Cal. 77, 57 P. 687, the amendment was sought long after the case had been submitted. In Barnes v. Berendes, 139 Cal. 32, 69 P. 491, 72 P. 406, the amendment was offered after the close of the trial and presented a new issue which would have necessitated the reopening of the case. The proposed amendment in Burr v. Pacific Ind. Co., 56 Cal.App.2d 352, 133 P.2d 24, was offered more than 15 months after the trial had ended. The motion to amend in Davies v. Symmes, 49 Cal.App.2d 433, 122 P.2d 102, was filed a few days before trial, but its granting would have necessitated a continuance. In the case of Phillips v. Mathews, 90 Cal.App.2d 161, 202 P.2d 798, the court simply held that the denial of the amendment was not error.

Appellants urge that in this case no continuance would have been necessary, since the amendment would not have been vulnerable to a demurrer. The fact that the new matter was known to cross-defendant all along has been held not to be a good reason to deny an amendment. Tolbard v. Cline, 180 Cal. 240, 245, 180 P. 610. It is true that the courts favor liberality in permitting amendments of pleadings at all stages of the trial to present all issues properly involved in the litigation. Seidell v. Anglo-California Trust Co., 55 Cal.App.2d 913, 923, 132 P.2d 12.

If the file had been introduced in evidence then, clearly, cross-defendant could have taken advantage of the cross-complainant's evidence to prove that the cross-complaint was within the scope of the issues in the previous case and was barred. Blumenthal v. Lieberman, 109 Cal.App.2d 374, 240 P.2d 699.

In view of the great lapse of time between the filing of the cross-defendant's answer and the request for amendment, it can hardly be said that the trial court abused its discretion. It is to be noted that on the seventh day of the trial the court had commented that if the records of the earlier trials went into evidence, it might force cross-complainant out of court on the cross-complaint. Cross-defendant did not take advantage of that opening to try for an amendment, but waited till both sides had rested. No abuse of discretion in denying leave to file the amendment appears in the record before us.

By reason of prejudicial error in failing to instruct the jury on the presumption of due care the judgment is reversed and the cause remanded for a new trial.

Judgment reversed.

KAUFMAN, Justice.

NOURSE, P. J., and DOOLING, J., concur.

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