RANGEL v. Joseph G. Badolato and Oakland California Towel Co., Respondents.

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District Court of Appeal, Third District, California.

Hilbert RANGEL, a minor, by Hazello, Duncan, his Guardian ad litem, Plaintiff and Appellant, v. Joseph G. BADOLATO et al., Defendants, Joseph G. Badolato and Oakland California Towel Co., Respondents.

Civ. 8493.

Decided: April 07, 1955

Sutter, Elledge & Carter, Modesto, for appellant. Keith, Creede & Sedgwick, San Francisco, and Geary, Spridgen & Moskowitz, Santa Rosa, for respondents.

This appeal is from a judgment entered upon the verdict of a jury in favor of defendants.

Plaintiff and appellant, a nineteen-year-old pedestrian, commenced this action through a guardian ad litem seeking damages for personal injuries suffered when struck by a delivery truck owned by defendant Oakland California Towel Co., a corporation, and driven by defendant Joseph Badolato. There were other defendants named, but as to them the action was dismissed.

The accident happened about 7 P.M. on October 5, 1951, when plaintiff, a sailor on a weekend pass from the Naval Net Depot at Tiburon, California, was walking with a friend down San Quentin Road in Marin County on his way to the Richmond-San Rafael Ferry. Both, dressed in the Navy uniform of dark blue with white caps, were walking on the right-hand side of the road expecting to catch a ride. At the same time defendant Badolato was also proceeding toward the ferry on the same road driving a truck belonging to defendant Oakland California Towel Co., when the right front fender of the truck collided with plaintiff.

At the point of collision, San Quentin Road is a two-lane road with asphalt surface 21 feet in width and having oiled shoulders three feet in width and outer gravel shoulders five feet wide.

The night was dark and clear. Plaintiff testified that he neither heard nor saw the truck prior to being hit. In a deposition taken prior to the trial, defendant Badolato stated that the first he saw of plaintiff was at the moment of impact when he saw the white cap. At the trial he testified that all he saw was plaintiff's white cap at the moment of impact, but he also testified that he saw the two sailors when he was about 15 or 20 feet away. Badolato further stated that he was traveling between 40 and 45 miles per hour, his lights were on ‘low beam’, and his vision was in no way obscured, although an oncoming car was driving with its ‘high beam’ lights on. He testified that as soon as he saw plaintiff he applied the brakes, swerved to the left, and his truck then swung back and forth across the highway, coming to rest in a ditch on the right-hand side of the road about 230 feet from the point of impact.

There is some question as to where plaintiff was when struck. Badolato testified by way of deposition that plaintiff and his companion were ‘not on the highway, they were on the shoulder * * * or near the shoulder’, but further that they couldn't have been on the shoulder but were on the paved portion of the highway. At the trial he testified that plaintiff was on the paved portion of the road when struck. Plaintiff and his companion testified that plaintiff was on the gravel shoulder of the road. Two witnesses for defendant stated that plaintiff was on the paved portion of the road.

Upon these facts the defendants raised issues of contributory negligence and unavoidable accident. The jury returned a verdict for the defendants. After judgment on the verdict, plaintiff moved for a new trial, which motion was denied.

On appeal the only assignment of error is the giving of certain instructions and the refusal to give others.

Appellant first contends that it was error for the trial court to have refused to give the following instruction requested by plaintiff:

‘You are instructed that the plaintiff and defendant were both chargeable only with the exercise of ordinary care, but a greater amount of such care was required of the defendant at the time of the accident in question by reason of the fact that he was driving and operating an automobile, which is an instrumentality capable of inflicting serious and often fatal injuries upon others using the highway.’ (Italics added.)

Appellant's position is that said instruction states a rule of law applicable to the issues and evidence in the case, that the jury was not otherwise properly instructed with reference to the relative ‘amounts' of caution required of the driver of a motor vehicle and a pedestrian. It is argued that it was prejudicial error to refuse to so instruct, since there might have been a plaintiff's verdict upon the facts but that the jury was precluded from considering the facts in the light of this aspect of the law and was misled by the giving of the following instruction:

‘It is the duty of every person using a public highway, whether a pedestrian or the driver or operator of any kind of vehicle, to exercise ordinary care at all times to avoid placing himself or others in danger and to avoid a collision.’

Respondents in answer contend that the refused instruction is unnecessary, archaic and misleading, and would have served only to confuse the jury, particularly in view of the fact that it was carefully instructed as to the definition of negligence in accordance with the standard of the reasonably prudent man and instructed as to the duty of the defendant driver to keep a vigilant lookout ahead. As to the instruction last above quoted, which was given by the court, respondents also point out that appellant submitted the identical instruction.

The most recent pronouncement of our Supreme Court on the question here involved appears in Cucinella v. Weston Biscuit Co., 42 Cal.2d 71, 265 P.2d 513. The court, 42 Cal.2d at page 80, 265 P.2d at page 519, after citing a long list of cases wherein instructions similar in language to the one here involved were approved, had this to say:

‘It is apparent that the intent of the instructions approved in the cited cases was to inform the jury that the elements of action constituting conduct which qualifies as ordinary care are those commensurable with the responsibility involved and depend upon the character of the instrumentality being used or the nature of the act which is being performed, all as related to the surrounding circumstances. If the particular instruction here requested by plaintiffs (No. 201–E) had consisted of only the first sentence thereof, which contains the expression ‘amount of caution,’ it perhaps would have been confusing to a jury. With the added explanation, however, set forth in the instruction, of the meaning of the quoted expression as related to the respective duties of driver and of pedestrian, the instruction as a whole correctly states the law and explains that what is meant by varying amounts of caution is that the elements of conduct entering into ordinary care or caution will vary and must be related to the particular circumstances involved, including the character of the act being performed.'

Among the cases to which the court was referring in the language just quoted is Dawson v. Lalanne, 22 Cal.App.2d 314, 70 P.2d 1002. In that case plaintiff, a pedestrian, was struck by an automobile driven by defendant. A judgment entered upon the jury's verdict in favor of defendant was reversed on the ground that the court refused to give the same instruction as that quoted above, which is the instruction refused by the court here. In the Dawson case, however, the court, 22 Cal.App.2d at page 315, 70 P.2d 1002, in reasoning upon the question of the trial court's refusal to give the instruction, made this observation:

‘* * * The error in failing to give the instruction becomes more apparent when it is considered that the court gave at the request of the defendant the following instruction: ‘No higher or greater degree of care was required of the defendant to avoid the accident than was required of the plaintiff. Each was required to exercise ordinary care under the conditions confronting him.’ The refused instruction was not covered in any of the instructions given by the court.' (Emphasis added.)

It does not seem that the reasoning in Dawson v. Lalanne, supra, concerning these instructions, is entirely accurate. Under the rule announced in Lasater v. Oakland Scavenger Co., 71 Cal.App.2d 217, 162 P.2d 486, 487, the last instruction hereinabove quoted from the Dawson case and disapproved there appears to be a correct statement of the law. A careful analysis of the instruction approved in the Dawson case, which is the identical one refused by the trial court in this case, and of which refusal appellant here complains, would indicate that it is not an entirely accurate statement of the law.

The expression ‘ordinary care’ is in one sense a general, and in another sense a specific term. It refers to that degree of care which would be exercised at all times or at any particular time under existing conditions by the ordinarily prudent person. It assumes definition as to a specific amount of care only when used in connection with some particular situation usually referred to as ‘under the circumstances'. But if the expression ‘ordinary care’ is to have any significance at all, the word ‘ordinary’ cannot be modified by such words as ‘more’ or ‘less'. Care is either of that degree which is ordinary under the circumstances or it is not. It may be more than ordinary or less than ordinary, but it cannot be more ordinary or less ordinary. If it is more or less than ordinary it therupon cases to be ordinary at all.

Unquestionably if the word such were to be deleted from the proposed instruction there could be no question concerning its propriety as a correct statement of the law or its application to the facts of this case. But in its present form the compelling interpretation of the language used therein is that the words ‘such care’ refer to the composite expression ‘ordinary care’ and not merely to the word ‘care’ alone. Unless this be considered as the correct interpretation, then the word ‘such’ is superfluous and has no meaning, for why would the simple word ‘care’ be referred to as such care if it were being thought of only as a generic term? In English expression and particularly in legal phraseology, use of the word ‘such’ is an accepted method of referring back, but in so doing the reference is specific and refers to the exact subject matter theretofore named or described, which in this case would be not merely ‘care’ but ‘ordinary care’. If this interpretation be correct then in the questioned instruction appellant was asking the court to instruct the jury that a greater amount of ‘ordinary care’ was required of defendant. This would have been an inaccurate statement of the law and misleading.

It may be argued that even conceding the merits of the foregoing discussion, the idea sought to be conveyed to the jury would still have been obvious and that the members thereof would not have been misled by any such fine distinctions. But we cannot with confidence say that a mere inaccuracy of expression is unimportant and unworthy of consideration for we are committed by a long line of decisions to the proposition that juries may be influenced by such technical inaccuracies. In Lasater v. Oakland Scavenger Co., supra, it was held that an instruction containing the expression “a greater degree of care” was erroneous because the word ‘degree’ rather than the word ‘quantum’ or ‘amount’ was used to indicate the character of the variations in care. It is stated in the opinion, 71 Cal.App.2d at page 221, 162 P.2d at page 487:

‘* * * The degree of care required of a person for his own safety is always the same, i.e. ordinary care, although in some circumstances the quantum or amount of care required to reach the degree of ordinary care is greater than in others. While neither courts nor lawyers have uniformly observed this distinction in terminology, it is a substantial one and well established in our law.’ (Emphasis added.) See also Barry v. Maddalena, 63 Cal.App.2d 302, 146 P.2d 974.

It would seem then, in view of the rule just quoted from Lasater v. Oakland Scavenger Co., supra, that the instruction disapproved in Dawson v. Lalanne, supra, and hereinbefore quoted, is a correct statement of the law and the instruction approved therein, which is the identical one refused by the trial court here, is not a correct statement. It is a little difficult to believe that the ordinary lay person, sitting as a juror, would within the usual period of service absorb enough from the proceedings and association to recognize such fine distinctions, but legally they are charged with this duty, though their ability to perform may not always measure up to this responsibility.

As stated, the expression ‘a greater amount of such care’, meaning a greater amount of ordinary care, is a technically inaccurate statement of the applicable rule of law. The inaccuracy may have meant but little to a jury but a careful reading and analysis of the proposed instruction by one exposed to training in the law would seem to imply that the driver or operator of the automobile was required to use something in the way of care over and above the ordinary care with which the instruction first states that both plaintiff and defendant were chargeable. Such, of course, is not the law and since the instruction does not represent an accurate statement thereof, it was not error for the court to refuse to give it.

In Cucinella v. Weston Biscuit Co., supra, we also find this language at pages 81–82 of 42 Cal.2d, at page 520 of 265 P.2d:

‘* * * The fault in this case is not one of affirmative misstatement of any rule of law but of failure to explain more fully that in the application of the general rules of law which were correctly declared, the jury, as a matter of law, as well as factually in using common sense, good judgment and general knowledge, should recognize that the force of inertia of a heavy, fast moving vehicle is greater than that of a comparatively light and slow moving pedestrian and that the respectively ensuing potentialities of harm and devolving responsibilities vary accordingly.’

With this pronouncement in mind and also bearing in mind that the trial court in the case before us gave the commonly accepted definition of ordinary care, together with a proper definition of negligence, it would seem that if a jury is to be charged with the knowledge, which of course is common knowledge, ‘that the force of inertia of a heavy, fast-moving vehicle is greater than that of a comparatively light and slow-moving pedestrian and that the respectively ensuing potentialities of harm and devolving responsibilities vary accordingly’, that they here must be charged with ability to apply the given definitions of ordinary care and negligence to this knowledge which must result in the inevitable conclusion that ordinary care in the operation of a ‘heavy, fast-moving vehicle’ of necessity involves a greater amount or quantum of care than would be involved in the walking of a ‘comparatively light and slow-moving pedestrian’ on the highway.

An incorrect statement of law in an instruction to a jury is error, even though it may not be of sufficient moment to merit reversal, as is also failure to state to the jury all those rules of law, particularly if submitted by the parties as instructions, which must be deemed reasonably necessary to permit persons of ordinary intelligence to apply the law of the case to the evidence. Duncan v. J. H. Corder & Son, 18 Cal.App.2d 77, 62 P.2d 1387. But it would appear a bit inconsistent to assume that a jury can absorb, remember and apply all the definitions and rules with the occasional alternatives and distinctions contained in the ordinary set of instructions, taking perhaps the better part of an hour for the court to give, and then to say that they lack the simple intelligence to apply them, unless selected ones are emphasized and explained. Here the usual and proper instructions were given on the subject of ordinary care and the obligations of the respective parties thereunder. This, aided by the instruction concerning the duty of persons using a highway, were adequate and no further or special instruction pertaining to the relative amounts of care required of the parties was under the circumstances of this case necessary.

Appellant next contends that it was error for the court to have given the following instruction requested by defendant:

‘You are instructed that where a person having a choice of two ways, one of which is perfectly safe and the other of which is subject to risks and dangers, voluntarily chooses the dangerous way, and is injured, such person is guilty of contributory negligence and cannot recover damages against the defendant.’ Appellant's most serious contention here is that the instruction is defective as omitting the element of proximate cause.

There is no question that standing alone this instruction does omit the element of proximate cause, but it would seem from a consideration of other instructions given on this subject that no prejudicial error resulted from such omission. Although it is true that a misstatement of an essential principle of law ordinarily is not cured by the giving of other instructions on the subject, it is also well settled that all instructions must be considered as a whole, and it does not always follow that the giving of an instruction deficient in a respect which is covered by other instructions, will always mislead the jury and warrant a reversal.

‘In reviewing instructions, the appellate court must read the charge as a whole and give the instructions a reasonable construction from the standpoint of their probable effect upon the jury.’ Wells v. Lloyd, 21 Cal.2d 452, 458, 132 P.2d 471, 475; O'Connor v. City and County of San Francisco, 92 Cal.App.2d 626, 207 P.2d 638; Dennis v. Gonzales, 91 Cal.App.2d 203, 205 P.2d 55.

Here, prior to the giving of the questioned instruction, the court fully advised the jury upon the issues of contributory negligence and proximate cause. After the jury had retired, it returned to court and requested a re-reading of the instruction pertaining to proximate cause, at which time the court elaborated at length upon the subject. In view of this re-instruction with emphasis on proximate cause it is extremely doubtful that the failure to include it as an element of the questioned instruction misled the jury. It was not re-read when the jury was returned to court. Other proper instructions explaining proximate cause in connection with the issue of contributory negligence were re-read and the very last statement by the court before the jury re-retired was as follows: ‘The element of proximate cause is involved either in the principal negligence or in the contributory negligence feature of this case. All right, you will retire again and attempt to arrive at a verdict.’ We find that under those circumstances there was not reversible error.

Appellant next contends that it was error for the trial court to have refused to give this instruction requested by the plaintiff:

‘It is the duty of a driver of an automobile when the view is unobstructued to see persons walking on the highway in front of the car.’

As its reasons for refusing to so instruct, the court indicated that the principle had been covered elsewhere and that the proposed instruction was not sufficiently qualified with respect to distance, exceptional conditions, etc. It would appear that the court was correct, for the instruction contains no qualification as to distance or otherwise and this ‘duty to see’ rule was fully and fairly covered by the instruction concerning defendant driver's duty ‘to keep a vigilant lookout ahead for other persons lawfully using the highway and to anticipate the presence of such persons' and his ‘duty under the law to keep his machine under control as would enable him, under the exercise of ordinary care, to avoid collision.’ There was no error in refusing to instruct in the unqualified language of plaintiff.

Finally, appellant contends that it was error for the trial court to give this instruction requested by defendant:

‘You are instructed that it is the duty of a person walking upon a highway to use ordinary care in looking for objects that may cause him injury and to see and heed that which, by such looking, may have been visible to him, in the exercise of ordinary care and caution. He had no right not to look or to look carelessly. To look carelessly or heedlessly is as negligent as not to look at all.’

In support of this contention appellant alleges that said instruction is not a correct statement of the law applicable to the case and that to so instruct led to prejudicial error in view of the conflict in the evidence regarding plaintiff's physical position at the time of the accident.

Although there is no legal duty placed upon a pedestrian ‘to look back or watch behind to see whether he or she is in danger of being struck or run down by any vehicle approaching him or her from the rear’, pedestrians as well as every person who travels over the highways by whatsoever means or mode, ‘must exercise reasonable or the due amount of care, considering the conditions existing as to the highways, for their own safety. If they fail in the exercise of such care and themselves thereby contribute proximately to the cause of any injury they may sustain at the hands of one having an equal right to use the highways, or if such failure is the sole cause of the damage they have suffered, then, of course, they have no ground upon which to base just complaint.’ Hatzakorzian v. Rucker-Fuller Desk Co., 197 Cal. 82, 95, 239 P. 709, 713, 41 A.L.R. 1027; see also La Branch v. Scott, 82 Cal.App.2d 1, 185 P.2d 823.

That the instruction herein questioned by appellant was erroneous is doubtful in view of the rule above noted. A fair construction would seem to indicate that the court was merely instructing the jury that a pedestrian using a highway must in the exercise of his primary duty to exercise ordinary care take heed of others traveling thereon, for purposes of self-preservation, and was not instructing that plaintiff as a pedestrian had an absolute ‘duty to look’ separate and apart from his duty to exercise ordinary care. It was an instruction apparently intended to relate the general instruction, regarding the degree of care required, to the facts of the instant case.

The judgment is affirmed.

FINLEY, Justice pro tem.

VAN DYKE, P. J., and SCHOTTKY, J., concur.

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