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

Albert Walter GARIBALDI, a minor, by his guardian ad litem, Albert F. Garibaldi, and Albert F. Garibaldi, Plaintiffs and Appellants, v. BORCHERS BROS., a corporation, and Edward Walter Silva, Defendants and Respondents.*

Civ. 16817.

Decided: July 31, 1956

Bruce F. Allen, Douglas, Zingheim & Allen, San Jose, for appellants. William J. Connolly, Donald F. Farbstein, San Francisco, for respondents.

Plaintiffs, who are father and son, appeal from an adverse judgment on a jury verdict in an action for damages for personal injuries sustained by the son when he came in contact with defendants' truck. The son will hereafter be referred to as the plaintiff and the truck driver as the defendant. All of the issues on this appeal relate to jury instructions.

The accident happened on Sunol Street, in San Jose, on August 19, 1952, about 10:30 o'clock a. m. Plaintiff was then 8 1/2 years of age and, accompanied by his 7-year-old sister, was on his way to visit a playmate who lived in the neighborhood. Sunol Street runs north and south and is 30 feet wide. At the time of the accident cars were parked solidly along the west side, leaving two lanes of traffic open. No parking was permitted on the east side. The district is solidly residential. There is a dirt strip 4 feet wide between the sidewalk and the curb on the east side.

The children's home was on the west side of the street immediately to the east of Sunol Street. They had come through their own backyard and the yard of the house behind theirs in order to reach the east sidewalk on Sunol Street. Then they turned north.

Defendant was driving a concrete mixer truck north on the east side of Sunol Street. He saw the children as he approached them and kept them under observation until his truck reached a point about 15 feet south of where they then were. After he had passed the children he heard a scream and a sound of something hitting the side of the truck. Plaintiff was found lying in the street, his feet toward the center of the street and his head 6 to 10 inches from the east curb. A mark on the truck indicated that the point of contact was on the right rear mudguard, 12 feet from the front of the truck.

At plaintiff's request, the jury was instructed on the last clear chance doctrine and told that plaintiff might recover thereunder. An instruction defining the elements of the doctrine in the exact language of B.A.J.I. 205, 3d Ed., was given. Plaintiff proposed this instruction, but added to paragraph ‘Third’ thereof the following language which is italicized: ‘Third: That the defendant Silva had actual knowledge of plaintiff's perilous situation, or that defendant Silva knew facts from which a reasonable person would have believed that plaintiff was in peril.’ This italicized portion was not given. Defendant's position is that the omitted language is not the law and that, furthermore, assuming that it is the law, the evidence is not sufficient to justify the giving of any instruction at all on last clear chance. This latter contention requires a discussion of additional facts which the jury might have found from the evidence. In such discussion, the evidence is viewed in the light most favorable to the application of the doctrine. Daniels v. City and County of San Francisco, 40 Cal.2d 614, 617, 255 P.2d 785.

Defendant testified that he saw the children when his truck was 200 to 250 feet away; his view of them was unobstructed; his speed was about 20 miles per hour; there was traffic approaching from the opposite direction; the truck was about 3 feet from the east curb; when about 100 feet from the point of the accident, defendant reduced his speed to 15 miles per hour; the children's backs were toward him and they did not look at him at any time; they were ‘on a hop and a skip down the sidewalk’; they ‘kind of jacked toward the west of the sidewalk’ defendant admitted telling the police that he saw the boy (plaintiff) step to the curb; defendant did not sound the horn or apply the brakes.

Plaintiff could not remember the accident. His sister testified (she was 9 years old at the time of trial) that she and plaintiff went from the sidewalk onto the dirt strip and waited for a northbound truck to pass and ‘then when the second one was coming, my brother started to go out by the curb, and I don't think he saw the truck, he was looking at me, and he told me to get back on the sidewalk, and so I was in the dirt strip and the truck came along and hit him.’ A neighbor testified that the truck swerved toward the east curb just before the accident in order to let a southbound truck pass.

From the testimony the jury might have found that plaintiff, by his own negligence, got himself in a position of danger, of which he was totally unaware; that defendant had actual knowledge of plaintiff's perilous situation when he saw him angling toward the curb; that it appeared to the defendant, or would have appeared to him in the exercise of ordinary care, that plaintiff was unaware of the danger impending in the situation because he never looked in the direction from which defendant was coming; that after defendant acquired actual knowledge of plaintiff's perilous situation, he had a clear opportunity to avoid the accident by sounding his horn, stopping his truck, or doing both; that defendant was negligent in not doing either and that such negligence proximately caused the accident. It was thus proper to give the last clear chance instruction because there was sufficient evidence upon which to base a recovery thereunder. It is equally correct to state that other testimony, not referred to herein, was sufficient to justify the jury in finding that all of the conditions required under the last clear chance doctrine did not exist. The verdict is, in other words, supported by substantial evidence and plaintiff does not contend to the contrary.

Thus, we come next to plaintiff's contention that defendant may be held liable under the last clear chance doctrine even though he did not actually know of plaintiff's perilous situation if he knew facts from which a reasonable person would have believed that plaintiff was in peril. This contention even eliminates knowledge of plaintiff's peril by the ‘reasonable man.’ Belief is less than knowledge. It is defined as follows: ‘acceptance as true by reason of sentiment or rational conviction rather than positive knowledge.’ Funk & Wagnalls New Standard Dictionary, 1933; emphasis added. This is merely a side comment, however, as the basic question is whether it is necessary that defendant himself, rather than a ‘reasonable man,’ have knowledge of the peril. In discussing the same addition to paragraph Third as that proposed by plaintiff, the editors of B.A.J.I., in the 1950 Supplement, at page 240, said: ‘Such a change would be definitely opposed to the rule as long established and as announced in cases cited in our notes.’ In Harrington v. Los Angeles Ry. Co., 140 Cal. 514, at page 523, 74 P. 15, at page 18, 63 L.R.A. 238, the Supreme Court said: ‘It is, of course, true, as urged by defendant, that it is essential to such liability that the defendant did actually know of the danger, and that there is no such liability where he does not know of the peril of the injured party, but would have discovered the same but for remissness on his part.’ (Emphasis added.) In Collins v. Marsh, 176 Cal. 639, 643, 169 P. 389, 391, the Supreme Court said: ‘The court gave an instruction designed to state the doctrine of the ‘last clear chance.’ In this instruction it stated that if the appellant saw, ‘or, in the exercise of ordinary care should have seen, the situation in which plaintiff was,’ and could then have avoided the collision by the exercise of ordinary care, and failed to take such care, he would be liable, notwithstanding the fact that plaintiff might have negligently placed himself in the dangerous position. The court should not have included the phrase which we have italicized. It is well settled in this state that the ‘last clear chance’ rule does not apply where the defendant was not, but should have been, aware of the plaintiff's danger. ‘Under this rule, a defendant is not liable because he ought to have known.’' (Citing authorities; emphasis by the court.) In one of the cases cited and relied upon by plaintiff, Starck v. Pacific Electric Ry. Co., 172 Cal. 277, 156 P. 51, L.R.A.1916E, 58, it is pointed out that, if a defendant is unaware of the presence of the plaintiff due to his own negligent failure to look, the doctrine does not apply. Plaintiff contends, however, that, if the defendant looks and sees the plaintiff but does not know that he is in peril, the doctrine nevertheless applies if a ‘reasonable man,’ seeing what defendant saw, would have know of the peril. This is contrary to the humanitarian concept of the last clear chance doctrine. As was said by the Supreme Court in the very recent case of Doran v. City & County of San Francisco, 44 Cal.2d 477, 488, 283 P.2d 1, 7: ‘It [the doctrine] is based upon the humanitarian concept that the fault of the injured party should not relieve the erring defendant of his liability if defendant is afforded such last clear chance to avoid the accident after actually discovering that it is too late for the injured party to avail himself of any similar chance. But the chance which is afforded to defendant must be something more than a bare possible chance. It must be not only a last chance but a clear chance, following actual knowledge of plaintiff's helplessness, to avoid the accident by the exercise of ordinary care.’ (Emphasis ours, except as to the words ‘last’ and ‘clear.’) At the oral argument before this Court, plaintiff cited Mason v. Hart, 140 Cal.App.2d 349, 295 P.2d 28, in support of his contention. But the case supports defendant instead. At page 355 of 140 Cal.App.2d, at page 32 of 295 P.2d the Court said:

‘* * * Thus actual knowledge by defendant of plaintiff's perilous situation is correctly required by the instruction. * * *

‘* * * The principle is well established in California that in order to invoke the last clear change doctrine there must be knowledge by defendant of the plaintiff's perilous situation; [citing the Doran case, supra].’ (Emphasis added.)

There is no valid distinction between negligent failure to see the plaintiff and negligent failure to properly evaluate his situation, upon seeing him, as being one of peril. How can it be said that a defendant who has seen the plaintiff but then negligently fails to realize his danger has any more of a last and a clear chance to avoid the accident than a defendant who has negligently failed to see the plaintiff at all? We conclude that the trial court properly refused to give that portion of plaintiff's proposed instruction which excluded the requirement that defendant have actual knowledge of plaintiff's peril. It should, of course, be kept in mind that proof of such knowledge is objective and the defendant's denial that he had such knowledge does not prevent a finding that he did. See Selinsky v. Olsen, 38 Cal.2d 102, 105, 237 P.2d 645.

Plaintiff complains of the giving of the following instruction: ‘The Doctrine of Last Clear Chance is invoked to defeat the defense of contributory negligence only in a case when, after plaintiff's negligence has put him into a position of danger, its work as an efficient agent of causation ceases, and it does not play a part in proximately causing the accident. When, on the other hand, a person's negligence not only places him in a position of danger, but thereafter it or its effect continues, and as a proximately causing factor, brings about, or helps to bring about, the accident, then the law of contributory negligence applies, and such person may not recover.’ (Substance of B.A.J.I. 205–A.) Plaintiff contends that this instruction tells the jury that continuing negligence of plaintiff would prevent the application of the last clear chance doctrine and defeat a recovery by plaintiff. The instruction does not so state. The first sentence of the instruction states that the rule does not apply unless the plaintiff's negligence has become remote in causation. The second sentence states that if plaintiff's negligence or its effect continues so as to be a proximate cause of the accident, then such negligence will bar a recovery. The instruction in question (B.A. J.I. 205–A) was preceded by the giving of B.A.J.I. 205, which, after defining the elements of last clear chance in six paragraphs, concludes as follows: ‘If all the conditions just mentioned are found by you by have existed with respect to the accident in question, then you must find against the defense of contributory negligence, because under such conditions the law holds the defendant liable for any injury suffered by the plaintiff and proximately resulting from the accident, despite the negligence of the plaintiff.’ (Emphasis added.) Paragraph ‘Second’ of B.A.J.I. 205 provides: ‘That thereupon, [after plaintiff got himself in a position of danger] either it was physically impossible for him through the exercise of ordinary care to escape from the danger, or he was totally unaware of impending danger in his position.’ Thus, if the proof supports a finding that the circumstances described in paragraph ‘Second’ existed, plaintiff is not deprived of the application of the last clear chance doctrine even if his negligence continued right up to the time of the accident. As said in Overacker v. Key System, 99 Cal.App.2d 281, 284, 221 P.2d 754, 755: ‘* * * in every case of negligent unawareness plaintiff's negligence continues to the very time of the injury, but if the elements of the last clear chance doctrine are present that rule nonetheless applies.’ Language in Doran v. City & County of San Francisco, supra, 44 Cal.2d at page 486, 283 P.2d at page 6; Center v. Yellow Cab Co., 216 Cal. 205, 207–208, 13 P.2d 918, and Girdner v. Union Oil Co., 216 Cal. 197, 203–204, 13 P.2d 915, is to the same effect. The very same instruction criticised here (B.A.J.I. 205–A) was considered and approved by this Court in the recent case of Clark v. Vieroth, 141 Cal.App.2d 462, 296 P.2d 823, and we adhere to that decision.

Plaintiff states that ‘the trial court instructed the jury according to the rules required of adult pedestrians.’ (Emphasis added.) This is not true. The jury was given the stock instruction on the care required of a minor, the first sentence of which is: ‘A child is not held to the same standard of conduct as an adult and is only required to exercise that degree of care which ordinarily is exercised by children of like age, mental capacity and experience.’ This is followed by the stock instruction (B.A.J.I. 201–C) as to the duty owed by a pedestrian while crossing a street, the last sentence of which was modified by adding the italicized protion, as follows: ‘What observations he should make, and what he should be for his own safety, while crossing the street are matters which the law does not attempt to regulate in detail and for all occasions, except in this respect: it does place upon him the continuing duty to exercise ordinary care to avoid an accident, the degree of ordinary care required in the case of a minor, is that ordinarily exercised by a child of like age, mental capacity and experience, under the same or similar circumstances.’

Plaintiff next charges that ‘the trial court erroneously instructed the jury that the minor plaintiff was required to yield the right of way to defendant's truck.’ (Emphasis added.) The criticised instruction is as follows:

‘While as to a roadway locality such as that involved in this case, a pedestrian has a right to cross the road at any point, these factors of consideration enter into the question of what conduct is required of him in the exercise of ordinary care. First: If he crosses at a point other than within a marked crosswalk or within an unmarked crosswalk at an intersection, the law requires him to yield the right of way to all vehicles on the roadway so near as to constitute an immediate hazard. Second: The amount of caution required to constitute ordinary care increases as does the danger that a reasonably prudent person, in like position, would apprehend in the situation.

‘This duty to yield the right of way is not in absolute one, and it is for you to determine from the facts whether the minor plaintiff Albert Garibaldi, exercised reasonable care under the circumstances, that is, the degree of care ordinarily exercised by a child of like age, mental capacity and experience.’ (Emphasis added.)

It seems clear that the trial court in its instructions emphasized the fact that the test was not whether the plaintiff acted as an adult should but whether he exercised the care ordinarily exercised by like children in similar circumstances. Plaintiff seems to infer, but does not expressly argue, that he could not have been guilty of contributory negligence because of his youth. This is not the law. Raggio v. Mallory, 10 Cal.2d 723, 727–728, 76 P.2d 660.

Plaintiff next contends that ‘the trial court erroneously instructed the jury to the effect that Silva [defendant] was entitled to assume that Albert Garibaldi would obey the law.’ This contention is untenable, particularly in the light of the instructions as a whole. The criticised instruction is as follows: ‘A person who, himself, is exercising ordinary care has a right to assume that others, too, will perform their duty under the law, and he has a further right to rely and act on that assumption. Thus it is not negligence for such a person to fail to anticipate an accident which can be occasioned only be a violation of law or duty by another. However, an exception should be noted: The rights just defined do not exist when it is reasonably apparent to one, or in the exercise of ordinary care would be apparent to him, that another is not going to perform his duty.’ (Emphasis added.) This instruction should be considered together with the following instructions which preceded it:

‘Ordinarily it is necessary to exercise greater caution for the protection and safety of a young child than for an adult who possesses normal physical and mental faculties. A person operating a motor vehicle must anticipate the ordinary behavior of children. The fact that they usually cannot and do not exercise the same degree of prudence for their own safety as adults, that they often are thoughtless and impulsive, imposes a duty to exercise a proportional vigilance and caution on a person operating a motor vehicle, and from whose conduct injury to a child may result. * * *

‘The presence of children is in itself a warning requiring exercise of care for their safety. The conduct of children is unpredictable and a person operating a motor vehicle should anticipate their thoughtlessness and impulsiveness.’ (Emphasis added.)

Thus, the jury was instructed that defendant was only entitled to assume that the children involved in this case would act as other children of like age would ordinarily act under similar circumstances until it became or should have become apparent to him that they were not going to so act.

Plaintiff next contends that the trial court erred in instructing the jury that: ‘Evidence of the oral admission of a party, other than his own testimony in this trial ought to be viewed by you with caution.’ (Emphasis added.) Section 2061 of the Code of Civil Procedure requires this instruction ‘on all proper occasions.’ (Emphasis added.) Plaintiff's point is that the instruction was not proper because defendant testified frankly to having made certain statements prior to the trial which were inconsistent with his account of the accident as told at the trial. Therefore, plaintiff argues, there was no occasion to view such testimony with caution. The admissions in question are three in number and are as follows: (1) Defendant told the police at the scene of the accident that he saw the plaintiff step to the curb (at the trial he denied seeing plaintiff step off the sidewalk onto the curb); (2) in his deposition, defendant stated that the truck was three feet from the east curb (at the trial he said five or six feet); (3) at a prior trial, defendant testified that he saw the children from a distance of 200 or 250 feet away (at the instant trial he said it was 100 to 150 feet). Defendant's testimony that he had made these admissions became part of his own ‘testimony in this trial’ and thus did not come within the ‘viewing with caution’ rule. It may be that there was no occasion to instruct on section 2061(4) but, under the circumstances, the jury must have given full weight to defendant's acknowledgment of his admissions. In our opinion, no prejudice did or could have resulted to the plaintiff from the giving of the instruction. Cal.Const., Art. VI, sec. 4 1/2.

The trial court refused to give an instruction requested by plaintiff on the existence of a prima facie speed limit of 25 miles per hour. The evidence is undisputed and defendant concedes that Sunol Street is in a residence district, as defined by section 90 of the Vehicle Code. The prima facie speed limit in such a district is 25 miles per hour. Vehicle Code, sec. 511(b)(1). There is testimony of speed in excess of this by a witness who did not see the accident but did see the truck just before it happened. She testified: ‘I thought he was going around 30.’ The offered instruction is taken from B.A.J.I. 144–A, 1952 Pocket Parts, and defendant does not question its form. Defendant's contention is that such an instruction on the prima facie speed limit cannot be given unless it is established that speed limit signs were in place at the entrance to the residential district or a contiguous residential district.

Three recent decisions of the Supreme Court directly hold that the prima facie speed limit for a business or residence district does not apply in any area unless it is signposted. Reynolds v. Filomeo, 38 Cal.2d 5, 10–13, 236 P.2d 801; Guerra v. Brooks, 38 Cal.2d 16, 18–20, 236 P.2d 807; Daniels v. City and County of San Francisco, 40 Cal.2d 614, 624, 255 P.2d 785. Plaintiff attempts to distinguish these cases on the ground that the accidents involved therein occurred on state highways. However, the opinions do not make mention of any such distinction. In Reynolds v. Filomeo, 38 Cal.2d 5, at pages 10–13, 236 P.2d 801, at page 804, the Court said:

‘* * * There was some evidence to show that the number of commercial buildings in that vicinity was sufficient to satisfy the statutory definition of a business district, Vehicle Code, § 89, but the uncontradicted evidence showed that the area was not signposted as provided in section 468 of the Vehicle Code. * * *

‘Plaintiffs contend that the prima facie speed limit of twenty-five miles per hour applies to any area in which the number of buildings is sufficient to bring it within the definition of a business district as defined in section 89 of the Vehicle Code; and that the question of the nature of the district and of the applicable prima facie speed limit therefore was a question of fact for the jury under the evidence, despite the fact that there was no evidence that the area was signposted. Defendant, on the other hand, contends that there was no such question for the jury's determination in the absence of any showing that the area was signposted. [Citing cases.] * * *

‘The substantive provisions relating to prima facie speed limits, * * * have been set forth in section 511 of that code. It is there provided, after excepting certain types of areas, that ‘fifty-five miles per hour’ is the prima facie speed limit ‘under all other conditions unless a different speed is established as provided in this code and signs are in place giving notice thereof.’ [Italics by the court.] Construing said section 511 with the sections relating to signposting, Veh. Code, §§ 465, 468, 468.1, it seems clear that the Legislature intended that the prima facie speed limit for a business or residence district should not apply in any area ‘unless * * * signs are in place giving notice thereof.’ This is a reasonable construction, for otherwise every motorist, without the aid of warning sings showing a lower prima facie speed limit, would be required to direct his attention to the surrounding area rather than to the highway, and to estimate the number of structures within given distances in order to determine at his peril what might be the prima facie speed limit in each particular area along his route of travel. Such a requirement would neither tend toward promoting safety nor the expedition of the flow of traffic upon our heavily traveled highways.

‘* * * We therefore conclude that in the absence of any evidence showing the signposting of the area here involved, there was no question to be submitted to the jury with respect to any alleged violation of the prima facie speed limit prescribed for a business district.’

The language just quoted is particularly applicable to the predicament of a motorist traveling on a state highway but not so much so to one traveling in a closely built-up residence district on a narrow street which is not on a state highway. Section 468 of the Vehicle Code, as worded at the time involved herein, provided: ‘Speed restriction signs shall be erected upon every state highway at the entrance thereof into a business or residence district, and may be erected upon any other highway or street at the entrance thereof into such a district or district.’ (Emphasis added.) The wording of this section, as amended in 1955, lends some weight to plaintiff's contention that motorists on state highways are entitled to a 55 mile per hour prima facie speed limit unless signposted to the contrary but that, otherwise, the character of the district is controlling. However, in Daniels v. City and County of San Francisco, supra, 40 Cal.2d 614, 255 P.2d 785, the court was considering an accident which happened right in the heart of a residential area in the City of San Francisco (intersection of Alemany Boulevard and Congdon Street) at 5:30 o'clock p.m. In approving the giving of an instruction that, as a matter of law, the prima facie speed limit was 55 miles per hour, it said: ‘But the signposting of a highway is absolutely essential for the application of the lower prima facie speed limits.’ 40 Cal.2d at page 624, 255 P.2d at page 792. It may also be added that there is no evidence that the truck's speed was in any way a proximate cause of the accident. Speed would affect the defendant's ability to stop the truck but the accident had already occurred before he became aware of it or made any effort to stop. The evidence shows without conflict that whether the truck was going 20, 25 or 30 miles per hour had no causal connection with the accident. Morever, the jury was fully and correctly instructed on the basic speed law, Veh.Code, sec. 510, and it is inconceivable that it could have believed that a truck weighing 15 tons and going in excess of 25 miles per hour on such a narrow residential street at 10:30 o'clock in the morning was not violating the basic speed law.

The judgment is affirmed.

AGEE, Justice pro tem.

BRAY, Acting P. J., and FRED B. WOOD, J., concur.

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