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District Court of Appeal, Fourth District, California.


BAKER v. ALVES et al.

Civ. 4674, 4676.

Decided: March 12, 1954

Conron, Heard & James, Bakersfield, for appellants. Kenneth J. Thayer, Dorsett M. Phillips, Bakersfield, for respondent M & M Livestock Transport Co. William A. Kurlander, San Francisco, for respondent Vern Baker.

These consolidated actions, with others, for property damage to trucks, were tried before the court, sitting without a jury. In each case plaintiff obtained a judgment against defendants and appellants. Defendants concede that the finding of the court that they were negligent is supported by some evidence. No point is raised in this respect. Their only contention is that the finding of the court that plaintiff, in each action, was not guilty of contributory negligence contributing proximately to the cause of the accident, is not justified, and that such finding is not supported by the evidence since it shows, as a matter of law, to the contrary.

It has been stated that cases where the courts have held, as a matter of law, that the negligence of the plaintiff contributed proximately to the accident ‘are rare’. Anthony v. Hobbie, 25 Cal.2d 814, 818, 155 P.2d 826. We conclude, however, that if there is any case in which the evidence would justify a conclusion that the plaintiff was guilty of contributory negligence as a matter of law, the instant case most likely comes within that exception, as far as it affects the judgment rendered in favor of plaintiff Vern Baker.

As to the Baker case, the evidence shows that a collision between several trucks occurred on April 12, 1951, about 2 p. m., on a clear day on Highway 466, at a point approximately 1 1/212 miles west of Clear Creek Station leading from Tehachapi to Bakersfield in what is described as mountainous terrain in the Tehachapi Mountains. At the point of impact the highway was approximately 27 feet wide with a shoulder of approximately 2 1/212 feet on each edge thereof. There were steep embankments to ravines below on each side of the road. There was a broken marked center line and the highway ran generally in an east-west direction. The upgrade of the road traveling easterly averaged about 6 per cent. From the point of impact to the east, visibility was obstructed for 408 to 455 feet by a bank and curve in the highway. To the west of the point of impact visibility was unobstructed for a distance of about 680 feet.

Immediately prior to the accident, three trucks, all averaging 60 feet in length and 96 inches in width were proceeding upgrade towards Tehachapi. The Automobile Forwarding Service truck, a two-ton tractor-trailer type, driven by Charles French, was hauling a load of four cars. It was traveling in its proper east-bound lane. Before the accident French observed a cattle truck following him through his rear view mirror. Apparently it was a trailer-truck belonging to M & M Livestock Transport Co., which was empty and was being driven by one Lacert. Immediately before the accident French heard the approach of an unloaded top type automobile carrier truck driven by plaintiff Baker, which was overtaking him to his left in the west-bound lane. The evidence shows that Baker was traveling upgrade about 12 to 15 miles per hour and that French was traveling about 7 to 8 miles per hour; that these two vehicles traveled alongside each other a distance of 75 feet or more; that both east-bound vehicles were in motion and were parallel to each other or approximately so when the Peterbuilt tractor-trailer truck loaded with fresh vegetables, driven by one Madrid, and belonging to defendant Walter Alves, came into view traveling westerly from behind an embankment at a distance of about 400 feet. It appears that when French observed the predicament which presented itself, and knowing that Baker was going to be unable to clear his truck by proceeding toward the east-bound lane, French pulled his truck to his right a short distance, stopped, set his brakes, and jumped to safety out of the right-hand door of his truck. He testified that Baker's tractor had proceeded a short distance past his tractor and that he then noticed it ‘faltered’, apparently due to some gear-shifting trouble, slowed up, and the driver, Baker, set his brakes; that his equipment was about two or three feet distant from the Baker equipment, which was still maintly in the west-bound lane; (another witness testified it was 6 feet); that being unable to stop, the Alves truck No. 1 collided first with the right front portion of the Baker truck and then struck the left portion of the French truck after forcing them both backward in a jackknife position; and that as a result a collision occurred with defendant M & M Livestock Transport Co.'s truck and trailer driven by Lacert, causing considerable damage by reason of the collision as well as by fire.

It appears that shortly after the Alves truck No. 1 collided, a similar Alves truck-trailer No. 2, driven by defendant Gonzales, came around the same turn, traveling west, and not being able to stop his equipment after skidding the tires a distance of 445 feet, struck Alves truck No. 1 and turned over on the east-bound lane.

The testimony as to the speed of the Alves truck No. 1 when it rounded the curve is varied. Madrid estimated it at from 35 to 40 miles per hour and that at the time of the actual impact he had slowed it down to 15 to 12 miles per hour. There is evidence that his truck caused skid marks for a distance of 250 feet. Baker estimated Madrid's speed at the time it struck his tractor at 50 miles per hour. The driver of the M & M Livestock Transport Co.'s truck estimated Madrid's speed at 35 to 40 miles per hour as it approached toward the scene of the accident. Another witness and his wife testified that they were following Madrid for some time in their car and the truck was going about 40 miles per hour; that Madrid rounded the curve in the road and that they followed him; that two trucks were coming east and they had the entire road blocked; that they witnessed the collision and then stopped their car to the right side of the highway about 40 feet from the point of collision; that Alves truck No. 2 came around the curve and ran into truck No. 1 and turned over.

Plaintiff produced a witness who claimed that this witness (the husband) on a later occasion, stated that he did not see the collision but that he came around the turn after the trucks had already collided; that the cars on the ‘wrong side of the line’ were burning and the drivers had already ‘gotten out of the trucks'. There was further testimony by Baker that this witness made a statement in his presence, that the Alves drivers had ‘nearly run him off the road’. The witness denied any such statement.

At the close of plaintiffs' evidence, he produced a witness, a lawyer, approaching from the East, who claimed he was traveling west on the highway that day; that about one-half mile east of the point of collision two Alves trucks traveling close together overtook and passed him; that he was traveling 45 miles per hour and he estimated their speed at 10 to 15 miles per hour faster than he was going; that later he heard the impact and after rounding the curve saw the results of the collisions. No person was injured but the tractors and trailers suffered major damage.

Based upon the evidence produced the court found that the sole and proximate cause of the accident was the negligence of defendant Walter Alves and the drivers of the Alves vehicles (this was apparently based upon the speed of the trucks); that plaintiff Vern Baker was guilty of no negligence contributing proximately to the damage to his truck; found against Alves on his cross-complaint against Baker; and entered judgment for Baker for $4225.

Defendants argue that they were entitled to travel at a speed of 55 miles per hour under sec. 511 of the Vehicle Code, and accordingly plaintiff was bound to anticipate the presence of cars approaching from the east at such speed when endeavoring to overtake and pass another vehicle proceeding in the same direction.

Section 510 of the Vehicle Code establishes the basic speed law and it requires, notwithstanding section 511 of the Vehicle Code, that a person drive his car upon the highway at no greater speed than is reasonable and prudent, having due regard for the traffic on the highway, and in no event at a speed which endangers persons or property. Section 515 of the Vehicle Code provides that ‘No person shall operate upon any highway any of the following vehicles when equipped entirely with pneumatic tires at any speed in excess of 40 miles per hour: (1) Any motor truck and trailer. (2) Any motor truck alone or truck tractor with semi-trailer having a gross weight, of vehicle and load or of such vehicles and load of 25,000 pounds or more.’ Since defendants make no point of the sufficiency of the evidence to justify a finding of negligence against them, we will not labor the point.

As to Baker's actions and conduct, the evidence is in practically no dispute. He had been proceeding easterly in the eastbound lane and had been endeavoring to pass the French truck for some distance. On this curve he made the attempt. The French truck was proceeding uphill at about 7 or 8 miles per hour. Apparently Baker's truck would be, under any mathematical calculation, unable to pass it within any short distance traveling at 12 to 15 miles per hour. Apparently Baker mistook his ability to completely negotiate the operation of overtaking and passing the French truck within the required time under the conditions present. It is apparent that Madrid, with his 65,000 lbs. of cargo and equipment, had no opportunity to avoid the collision, even if he had been proceeding under the basic speed law or in conformity with sec. 515 of the Vehicle Code, when it was discovered that the highway was completely blocked by Baker's action at the time Madrid rounded the curve in the highway at a distance of only 400 feet or less from Baker.

To find that Baker was guilty of no contributory negligence, it seems to us, does violence to the sections of the Vehicle Code setting forth the legal principles involved.

Section 525 of the Vehicle Code provides:

‘(a) Upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway, except as follows:

‘(1) When overtaking and passing another vehicle proceeding in the same direction under the rules governing such movement.’

Section 528 provides:

‘The following rules shall govern the overtaking and passing of vehicles proceeding in the same direction, subject to the limitations and exceptions hereinafter stated:

‘(a) The driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass to the left thereof at a safe distance and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle.’

Section 530 provides:

‘(a) Except when a roadway has been divided into three traffic lanes, no vehicle shall be driven to the left side of the center line of a roadway in overtaking and passing another vehicle proceeding in the same direction unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the safe operation of any vehicle approaching from the opposite direction or any vehicle overtaken. In every event the overtaking vehicle must return to the righthand side of the roadway before coming within one hundred feet of any vehicle approaching from the opposite direction.

‘(b) No vehicle shall at any time be driven to the left side of the roadway under the following conditions:

‘1. When approaching the crest of a grade or upon a curve in the highway where the driver's view is obstructed within such distance as to create a hazard in the event another vehicle might approach from the opposite direction.’

In Yeager v. Bray, 138 Cal.App. 328, 32 P.2d 396, after setting forth certain calculations of speed and time, it was held that the evidence produced showed a violation of these sections and unerringly pointed to negligence causing or contributing to the injury.

Plaintiffs rely principally upon the decision in Pohler v. Humboldt Motor Stages, Inc., 100 Cal.App.2d 571, 224 P.2d 440, 442, in support of the finding and judgment. There it was said, as to ‘the turning movement’ on the highway: ‘All that is required is that he take the precautions which a reasonably prudent person would take under the circumstances reasonably appearing to him at the time.’ The facts there under consideration were substantially different from those presented in the instant case.

In Satterlee v. Orange Glenn School District, 29 Cal.2d 581, 177 P.2d 279, 283, in setting forth the legal principles applicable to the doctrine of contributory negligence as a matter of law, it is said:

‘An act or failure to act below the statutory standard is negligence per se, or negligence as a matter of law. And if the evidence establishes that the plaintiff's or defendant's violation of the statute or ordinance proximately caused the injury and no excuse or justification for violation is shown by the evidence, responsibility may be fixed upon the violator without other proof of failure to exercise due care. * * * An act which is performed in violation of an ordinance or statute is presumptively an act of negligence, but the presumption is not conclusive and may be rebutted by showing that the act was justifiable or excusable under the circumstances. Until so rebutted, it is conclusive.’

No showing of justification or excuse for Baker's passing the truck under the circumstances here related is made.

In Bartuluci v. San Joaquin Light & Power Corporation, 21 Cal.App.2d 376, 69 P.2d 440, 445, it is said (quoting from Fernandes v. Sacramento City Ry. Co., 52 Cal. 45):

‘But when there is no controversy as to the facts, and from these it clearly appears what course a person of ordinary prudence would pursue under the circumstances, the question of negligence is purely one of law. * * *’

As a matter of common knowledge, it would be inherently dangerous for the driver of a passenger car to try to pass such a long tractor and trailer while going uphill and rounding a blind curve, with such a limited view of the road ahead, and with the probability that other vehicles would be coming downhill at a greater speed. It would be much more dangerous, inherently, for the driver of a slow-moving and long tractor-trailer to attempt to do this. The uncontradicted portion of the evidence discloses an obviously dangerous situation which would be apparent to any person of ordinary prudence, regardless of whether or not the speed of the vehicle which happens to come downhill, around the turn, is greater than it should have been. Any inference deducible from the evidence presented points unerringly to the contributory negligence of the plaintiff Baker.

Plaintiff further contends that the judgment could be supported under the theory that defendants had the last clear chance to avoid the collision. Under the findings of no negligence on the part of the plaintiff, the photographs of conditions there existing, and the evidence produced, the last clear chance doctrine was not applicable. The rule presupposes that the one injured was placed in such position of peril through his own negligence. Young v. Southern Pacific Co., 182 Cal. 369, 190 P. 36.

As to the M & M Livestock Transport Co. case a different situation arises from the conflicting evidence produced. The testimony shows that there were several such empty cattle-carrying trucks belonging to that plaintiff and trailing each other in an easterly direction with truck No. 12 in the lead and No. 11 following it. They were preceded by the empty Baker car carrier. Apparently some of them had been awaiting an opportunity to overtake and pass the French truck. The driver of truck No. 11 (Shand) testified that just shortly before the accident, Baker attempted to pass the French truck; that he (Shand) was driving his truck about 350 to 400 feet behind the Baker truck at the time; that truck No. 12 was being driven along behind the Baker truck about 250 feet ahead of truck No. 11 and waiting to turn out and also pass by the French truck; that the front part of tractor-truck No. 12 was in the west-bound lane and that both drivers of trucks No. 11 and No. 12 were ‘keeping our distance’ from the truck ahead, ‘which is the drivers' law’; that about that time, a distance of about 800 feet ahead, he first saw the approach of the first Alves truck coming around the bend; that when Baker and French stopped their trucks the drivers of both plaintiff's trucks also stopped their trucks and that the front of tractor-truck No. 12 was then about 10 feet to the rear of the French truck and that the Alves truck came down the center line and struck both the Baker and French trucks and drove the Baker truck back into truck No. 12 and caused the collision with it and the resultant fire; that no injury resulted to his truck No. 11.

The driver of truck No. 12 testified that he was driving behind the French truck ‘about 100 to 150 feet’ when the Baker truck turned out and started to pass the French truck; that he then slowed down and got up to within 30 to 35 feet of them; that the Alves truck was not in sight at that time; that when the rear ends of both the Baker and French trucks were about even with each other, the Baker truck seemed to stop for some unknown reason; that it was then about 300 or 400 feet from the turn; that he then saw the Alves truck coming and he swerved his truck somewhat to his left so that the front wheel of tractor was over the center line a foot or two, and he then set his brakes and jumped out of his truck; that the Alves truck first hit the Baker truck and an explosion occurred, and the Baker truck collided with his tractor and jackknifed it against the truck bed.

It is defendants' contention that plaintiff violated section 531 of the Vehicle Code in following too closely behind the vehicles immediately preceding it and within less than 300 feet to the rear thereof. That section does not prevent overtaking and passing another vehicle traveling in the same direction. Apparently, this latter act was what plaintiff's driver was contemplating. A compulsory finding that this section was violated is not indicated. The evidence as to the location of truck No. 12 in respect to the trucks preceding it was in conflict. Whether the section had been violated and whether such claimed violation was the proximate cause contributing to the damage to plaintiff's truck No. 12 was a factual question for the trial court, and cannot be disturbed on appeal. Hosi v. La Vey, 102 Cal.App.2d 597, 228 P.2d 35; Church v. Headrick & Brown, 101 Cal.App.2d 396, 225 P.2d 558.

Accordingly, the judgment in favor of Vern Baker as against the defendants and appellants Walter Alves, Hanley H. Madrid, and Floyd Gonzales, is reversed. The judgment in favor of the M & M Livestock Transport Co. and against Walter Alves, Hanley H. Madrid and Floyd Gonzales, is affirmed. In action No. 4674, plaintiff M & M Livestock Transport Co. to recover its costs on appeal. In action No. 4676, defendants and appellants Walter Alves, et al., to recover their costs against plaintiff Vern Baker.

GRIFFIN, Justice.

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

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