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

Anthony PROGERS, Plaintiff and Respondent, v. LOS ANGELES TRANSIT LINES and Langendorf United Bakeries, Inc., Defendants and Appellants.

Civ. 20640.

Decided: May 11, 1955

Melvin L. R. Harris, David S. Smith, Los Angeles, for Los Angeles Transit Lines, and E. E. Feb. Parker, Stanbury, Reese & McGee; Wm. C. Wetherbee, Los Angeles, for Langendorf United Bakeries, Inc., and Ben B. Harmell. F. Murray Keslar, Los Angeles, for respondent.

This is an action for damages for personal injuries resulting from an accident.

Following a jury trial which resulted in a verdict for plaintiff, defendant Langendorf Bakeries appeals from the judgment. Defendant L. A. Transit Lines appeals from the judgment.

As recited in L. A. Transit Lines opening brief, ‘Plaintiff was a passenger on a bus on the Los Angeles Transit Lines, sometimes hereinafter referred to as LATL, driven by its operator, E. E. Feb, sometimes hereinafter referred to as Bus Driver. As the bus was moving in a westerly direction on its usual route along Beverly Boulevard, plaintiff, a regular passenger on this route, put and kept his elbow outside the bus window. The bus passed but did not touch a Langendorf Bakery (truck), sometimes hereinafter referred to as Langendorf Truck, then in the care of its driver, Ben B. Harmell, sometimes hereinafter referred to as Truck Driver. The Langendorf truck was parked near the curb. Plaintiff's elbow, protruding outside the window sill, struck an open door of the Langendorf truck; this door was at the back of the truck and on the side of passing traffic. The contact between this door and plaintiff's elbow caused injuries to plaintiff.

‘Culled from the record of the lower Court are the following facts most favorable to plaintiff:

‘1. The bus here involved had a width of eight feet, nine and one-quarter inches (8′ 9 1/4″). The lane of traffic in which it was proceeding at the time of the accident was nine (9′) feet wide.

‘2. Considering only the body of the Langendorf truck, its left fender, and left door when open, the measurement was 77 1/4 inches across: The body is 66 inches across, the left fender extends 7 1/4 inches beyond the body, and the left door when open extends 4 inches beyond the left fender.

‘3. Plaintiff was seated on the right hand side of the bus in the seat next to the rear.

‘4. The bus was proceeding in a westerly direction on Beverly Boulevard in the inside lane, left this lane to go to the second lane, and then proceeded straight out Beverly in the latter lane. The bus was going due west before the accident.

‘5. The bus moved to the second lane when it was about 40 feet from the Langendorf Truck. For the first time, plaintiff then saw the Langendorf Truck. Plaintiff further testified that at that time, only the right door of the truck was open. Plaintiff further testified that the left door of the Langendorf Truck was closed when the bus was 40 feet away. However, plaintiff testified that the Truck Driver was at that same time standing at the rear of the Langendort Truck where the doors of the truck were located.

‘6. While the left door had been closed, as hereinbefore shown, when the bus was only 40 feet away, after the front of the bus passed the truck, the left door ‘flashed’ open, and plaintiff's elbow then was hit by the then open left door of the truck. Plaintiff testified that his elbow was three inches outside the bus, and also two inches.

‘7. Plaintiff further testified that at the time the bus passed the truck, the bus was a foot distant from the truck.

‘8. Plaintiff's most favorable testimony disclosed that there was ample clearance between the truck and the bus, but that it was the suddenly opened (‘flashed’) left door which struck his protruded right elbow and caused his injury. As a matter of fact, the Truck Driver corroborated the testimony of plaintiff to the effect that plaintiff's elbow struck the left door, and that the bus did not come into contact with the truck. The Bus Driver also corroborated the fact that the bus did not touch the truck and was unmarked. It was uncontroverted and no one claimed that the bus and truck contacted one another.'

As recited in Langendorf Bakeries opening brief, ‘The accident occurred on a clear morning while the bakery truck of Langendorf Bakeries was parked against the curb and was in the curb lane of travel on Beverly Boulevard in front of the Lucky Food Mart. Ben B. Harmell, the driver of the truck, had thrown both rear doors of the bakery truck open in the course of withdrawing bakery products from the rear of the truck to service the Lucky Food Mart. At the time of the accident he was standing at the back of his truck writing his bills and the doors had been opened and stationary for at least four or five minutes. The left rear door extended out four inches beyond the fender of the truck but not beyond the marked area of the parking lane.

‘Beverly Boulevard curves rather sharply to the left about 160 feet east of where the bakery truck was parked. As the bus rounded the curb it swerved into the curb lane of travel and continued in this lane until it was about 40 feet from the bakery truck. At this point it cut back into the middle lane of traffic and as the bus passed the bakery truck the truck driver heard a tick at the edge of his left rear door. This tick proved to be the sound of plaintiff's elbow contacting the edge of the left rear door of the bakery truck.’

It is argued by the baking company that, ‘the lower court made it impossible for the jury to find in favor of these defendants. This was done, in effect, by so rewriting Section 596.6 of the Vehicle Code as to tell the jury that these defendants were negligent as a matter of law if the rear doors of the truck were left open regardless of whether a reasonably prudent person would have foreseen danger to others, and even though no danger were created. This prejudicial error constitutes the basis for the appeal of these defendants.’

The court instructed the jury as follows:

‘You are instructed that Section 596.6 of the Vehicle Code of the State of California provides as follows:

Ҥ 596.6. Opening and Closing Vehicle Doors.

“No person shall open the door of a motor vehicle on the side available to moving traffic unless and until it is reasonably safe to do so, nor shall any person leave a door open upon the side of a vehicle available to moving traffic for a period of time longer than necessary to load or unload'.

‘Conduct which is in violation of Section 596.6 of the Vehicle Code just read to you constitutes negligence per se. This means that if the evidence supports a finding, and you do find, that a person did so conduct himself, it requires a presumption that he was negligent. However, such presumption is not conclusive. It may be overcome by other evidence showing that under all the circumstances surrounding the event, the conduct in question was excusable, justifiable and such as might reasonably have been expected from a person of ordinary prudence. In this connection, you may assume that a person of ordinary prudence will reasonably endeavor to obey the law and will do so unless causes, not of his own intended making, induce him, without moral fault, to do otherwise.

‘If you should find from the evidence that a party to this (action) conducted himself in violation of Sec. 596.6 of the Vehicle Code, just read to you, you are instructed that such conduct constituted negligence as a matter of law.’

The foregoing instruction was prejudicial error. Obviously the court is without power to amend or modify the law. But the incident is unimportant. Section 596.6 has no application whatever to the issue involved. The section obviously applies to the side doors only, whether passenger cars or trucks. By no process of reasoning, construction or interpretation can the section be held to include end doors. The doors of the bakery truck were end doors and not side doors. The truck of course had side doors for entrance to the driver's seat, but the side door was not open. The section is clear and unambiguous, therefore, to read the word end into the section would clearly violate basic rules of construction. Moreover there is no evidence whatever of negligence on the part of the driver of the bakery truck. The judgment against the bakery company must therefore be reversed.

The L. A. Transit Lines case presents a different situation, both as to the law and the evidence.

The L. A. Transit Company argues that ‘appellants were not insurers of plaintiff's safety. Only a high degree of care was required of them, and the record fails to disclose absence of such care.’ It is also argued that the doctrine of ‘assumption of risk’ is involved and that the court failed to instruct the jury on this subject.

There are many cases on the subject and quoting from some of them it appears well settled, as stated by respondent, that,

“Before it can be said that one has ‘asumed the risk’ of a specified hazard, it must be shown that he had knowledge of the condition creating the hazard, since one does not assume the risks of danger which he has no reason to anticipate.' DeGraf v. Anglo Cal. Nat. Bank, 14 Cal.2d 87, 92 P.2d 899.

‘In California, the doctrine of assumption of risk is merely one phase of the Doctrine of Contributory Negligence. Bunch v. Eason, 95 Cal.App.2d 845, 214 P.2d 28.

‘Doctrine of Assumption of Risk presupposes existence of a dangerous situation or condition known to, or which should reasonably have been known to the injured party, who, nevertheless, chooses to enter upon or remain within the area of risk. Smythe v. Schacht, 93 Cal.App.2d 315, 209 P.2d 114.

‘One does not assume risk so as to bar recovery in an action in tort when he has no knowledge of peril involved. Moran v. Zenith Oil Co., 92 Cal.App.2d 236, 206 P.2d 679.

‘A person does not assume the risk of danger which he has no reason to anticipate. Owen v. Rheem Mfg. Co., 83 Cal.App.2d 42, 187 P.2d 785.

‘The doctrine of ‘assumption of risk’ presupposes existence of a dangerous situation or condition known to plaintiff who nevertheless chooses to enter upon or remain within area of risk. Ziesemer v. McCarty, 71 Cal.App.2d 378, 162 P.2d 857.

‘The doctrine of ‘assumption of risk’ and the Doctrine of Contributory Negligence are closely related but they are nevertheless separate and distinct Doctrines. Dingman v. A. F. Mattock Co., 15 Cal.2d 622, 104 P.2d 26, also prior Cal.App., 96 P.2d 821.

‘The applicability of the Doctrine of Assumption of Risk is based on the knowledge and appreciation of a danger, and the voluntary occupation of a position of danger in disregard of the use of the ordinary care, and the time, place, person and relationship of the parties must be considered. Weaver v. Shell Co., 34 Cal.App.2d 713, 94 P.2d 364; Ring v. Los Angeles Ry. Corp., 116 Cal.App. 93, 2 P.2d 404; Commonwealth Bond & Cas. Co. v. Pacific Electric Ry., 42 Cal.App. 573, 184 P. 29.

‘Negligence becomes a question of law only in the exceptional case, being generally a mixed question of law and fact. Elizalde v. Murphy, 11 Cal.App. 32, 103 P. 904.’

In this connection the court instructed the jury that,

‘The requirement that the carrier exercise the utmost care for the passenger's safety does not relieve the passenger of the duty to exercise ordinary care for his own safety. This responsibility rests upon the passenger at all times and if he fails in it, and that failure contributes in any degree as a proximate cause of injury to himself, he may not recover from the carrier for such injury.

‘So long as a passenger does exercise ordinary care for his own safety, and in the absence of appearances that caution him, or would caution a reasonably prudent person in like position, to the contrary, he has a right to assume that the carrier will perform all the duties required of it, as stated to you in these instructions, and a right to rely on that assumption.’

In effect, the foregoing instruction covers the subject of assumption of risk. The instructions also fully covered the subjects of negligence and contributory negligence.

The issue presented a question of fact for the jury. Although somewhat conflicting nevertheless, the evidence is sufficient to support the verdict. The jury might well have assumed from the evidence that the bus was driven too close to the bakery truck and that, in the circumstances, such an act amounted to negligence. Also, that plaintiff was not contributorily negligent. Therefore, in the L. A. Transit Lines case, the judgment must be affirmed.

For the foregoing reasons the judgment in the Langendorf United Bakeries, Inc. case is reversed and the judgment in the Los Angeles Transit Lines case is affirmed.

DORAN, Justice.

WHITE, P. J., and DRAPEAU, J., concur.