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

Mary V. SPENCE, Plaintiff and Appellant, v. Squire DORAN, Defendant and Respondent.*

Civ. 22008.

Decided: February 06, 1957

George L. Hecker, Orlan S. Friedman, Beverly Hills, for appellant. Spray, Gould & Bowers, Los Angeles, for respondent.

Appeal from judgment denying recovery of damages allegedly suffered in a collision of her automobile with that of respondent on a public highway.

Rollin Spence, seated by his wife, the plaintiff, was operating her automobile on Highway 138, near Pear Blossom. Their Anthony, 16, occupied the rear seat. The road was of concrete divided by a white line into two lanes. Each lane was wide enough for one car. The road had ‘a sandy shale-like shoulder and an embankment on each side. From the paved roadway to the bottom of the embankment it was five or six feet.’

Going east at a speed of 50 miles per hour, Spence collided with the vehicle of respondent going west at the same speed. Mrs. Spence was injured. She instituted this action to recover her damages. The verdict went against her. She demands a reversal on the ground that the evidence does not support the implied findings of the jury. It appears to be without conflict that the point of impact was in the west-bound lane and that immediately prior to the collision, Mr. Spence swung to his left and into the on-coming lane in an attempt to avoid respondent who was coming toward Spence in the east-bound lane. The only real conflict in the evidence is on the question as to whether or not respondent was in the east-bound lane for the purpose of passing two slow-moving vehicles. Respondent testified that he was. Spence and his son Anthony testified that they saw no vehicles to be passed by respondent. No other witness testified to the manner in which the accident happened, Mrs. Spence having suffered retrograde amnesia. But this conflict in the evidence is unimportant in view of the law involved and the conclusion derived.

The behavior of a motorist in passing a slow-moving vehicle on his own side of the highway must be adjudged in the light of section 530 of the Vehicle Code. It is there provided that no vehicle shall be driven to the left side of the center line of a roadway in passing another vehicle going in the same direction ‘unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit * * * passing to be completely made without interfering with the safe operation of any vehicle approaching from the opposite direction * * *.’ In any event, the overtaking vehicle must return to the right-hand side of the roadway before coming within one hundred feet of any vehicle approaching from the opposite direction. Whether respondent was free from negligence or appellant was contributorily negligent is a question of fact to be determined from the facts established by the evidence. The trial judge concluded that either one or both was true and denied a motion for an instructed verdict and when the motion for a new trial came on for hearing, it was again held that no question of law was raised and the court denied the motion.

Respondent Negligent

Despite the doctrine that every reasonable inference must be indulged in favor of the judgment and every fair intendment must support is we are persuaded that the contention of appellant must be upheld. The evidence as to respondent's negligence and as to the proximate cause is conflicting. Palmer v. City of Long Beach, 33 Cal.2d 134, 199 P.2d 952; Miller v. Pacific Constructors, Inc., 68 Cal.App.2d 529, 157 P.2d 57. The testimony was clearly in conflict as to respondent's overtaking two vehicles. Respondent testified that he was driving west on the north lane of the highway; overtook two automobiles that were ‘mighty near stopped’; in order to pass them he pulled out into the east-bound lane, passed the vehicles on their left and as he ‘came back in’ everything was blacked out; he did not know how far the Spence car was from him when he pulled out to go ground the two cars; he saw the Spence car a short distance from him on the east-bound lane; immediately prior to the collision he was in the southerly or east-bound lane although he was proceeding toward the west. His excuse for being there clearly inculpates him and lends corroboration to the evidence of appellant. It is highly significant that if there were two slow-moving vehicles so close to the scene that the occupants of the same were not called as witnesses by either party. It is highly improbable that such occupants would not have come up to the scene of the accident and given assistance, particularly in view of the fact that both plaintiff and the female companion of respondent were seriously injured. Mr. Spence's testimony that another car and the police arrived promptly after the accident is uncontradicted. If there were occupants of the two slow-moving vehicles, why were they not identified and brought to court as the only disinterested witnesses of the collision? Although Mr. Spence and his son insist that there were no vehicles in the west-bound lane approaching them, since the jury impliedly found the presence of such vehicles, we are obliged to assume that as an established fact. But even with such assumption, the actual situation defeats the contention of respondent.

From his testimony only it is established that he had drunk whiskey the night before and had been drinking on the way as he drove toward the scene of the accident. He did not know how many times he had drunk. While he maintains that two slow-moving vehicles suddenly loomed up in his own lane and forced him to swerve into the east-bound lane yet he admits the day was clear and sunny and that the highway was straight1 whereby, if he had been observing the law and exercising a reasonable caution, he might readily have seen such vehicles far in advance of him. If he had been attentive to the road and had had respect for the safety of others making use of it and any thought for his own safety, he would have noticed not only the Spence car but also its rapid approach. The day was so clear that he had at least two miles of visibility. The only reasonable inference is that he did not look or if he did look, he had no respect for the rights of others using the highway. He testified that he returned promptly to the west-found lane and did not see the Spence vehicle until the instant previous to the crash. From such proof from the lips of respondent, the processes of deduction lead unerringly to the conclusion that respondent was negligent as a matter of law and that such negligence was at least a contributing factor in causing the collision. Therefore, if the verdict was based upon respondent's freedom from negligence, it was conceived in error.

Appellant Not Contributorily Negligent

The only other hypothesis whereby the verdict might be justified is that appellant was contributorily negligent. There is no substantial basis for such contention. If respondent was in the eastbound lane immediately before the crash, as he testified, then Mr. Spence driving at 50 miles per hour was suddenly confronted with an automobile approaching him headon at about the same rate of speed. The cars were covering the gap between them at the aggregate rate of one hundred miles per hour or 147 feet per second. Respondent testified that in fact he was unaware of the presence or approach of appellant's vehicle. That situation required prompt and speedy exercise of judgment on the part of Spence. For the situation of both parties to remain a second or two, they faced immediate death from a head-on crash in the east-bound lane. If Spence had turned right, his family faced death at the foot of the embankment on the south side of the highway. In view of the crisis that faced him, can it be said that Spence was negligent in resorting to the least perilous course? By leaving his own lane for the purpose of avoiding respondent's car wildly plunging down upon him, he chose the route calculated to result in the minimum of detriment as it would have occurred to any reasonably cautious motorist. Therefore, the jury erroneously reasoned that Mr. Spence was negligent in attempting to avoid a head-on collision in his own lane of travel.

Contributory negligence is a question of fact for the jury, except where the court can hold as a matter of law that only one rational inference can be drawn from the evidence. Bardin v. Case, 99 Cal.App.2d 137, 142, 221 P.2d 292; Anthony v. Hobbie, 25 Cal.2d 814, 818, 155 P.2d 826; Blank v. Coffin, 20 Cal.2d 457, 126 P.2d 868; Kosloskye v. Cis, 70 Cal.App.2d 174, 160 P.2d 565. Such is the situation in the instant cause.

Spence was not required to anticipate negligence on the part of respondent, Bardin v. Case, supra; Bingham v. Greenamyer, 25 Cal.App.2d 467, 77 P.2d 867, neither was he guilty of contributory negligence because in a moment of imminent peril he failed to take the course that careful consideration after the fact shows that he should have taken. Karr v. Parks, 40 Cal. 188, 193.

According to the widely accepted doctrine of ‘imminent peril,’ one who in a sudden emergency acts according to his best judgment, or because of lack of time to form an accurate judgment, omits to act in the most judicious manner, is not chargeable with the negligence, so long as he did exercise the care of a reasonably prudent person under like circumstances. The fact that injurious consequences might have been avoided by following another available course does not, by reason of the injuries, render the actor blamable. 38 Am.Jur., Negligence (1934) § 296, p. 796; Prosser on Torts (1941) § 37, p. 242. The doctrine has been characterized by the courts of this state as the ‘sudden peril rule’, De Ponce v. System Freight Service, 66 Cal.App.2d 295, 301, 152 P.2d 234, 237; Uhl v. Fertig, 56 Cal.App. 718, 724, 20l P. 467, and the ‘imminent peril doctrine’, Stickel v. Durfee, 88 Cal.App.2d 402, 407, 199 P.2d 16; Yates v. Morotti, 120 Cal.App. 710, 716, 8 P.2d 519. It is available to every ‘person who, without negligence on his part, is suddenly and unexpectedly confronted with peril, arising from either the actual presence, or the appearance, of imminent danger to himself or others.’ When a motorist faces such peril, he is released from the rule of ordinary care which governs him in clamer and more deliberate moments. Leo v. Dunham, 41 Cal.2d 712, 714, 264 P.2d 1; and see Gamalia v. Badillo, 53 Cal.App.2d 375, 378, 128 P.2d 184; Graham v. Consolidated Motor Transport Co., 112 Cal.App. 648, 652, 297 P. 617; Hooper v. Bronson, 123 Cal.App.2d 243, 251, 266 P.2d 590.

It is the duty of the driver of a vehicle who is suddenly confronted with danger arising from the fault of another to seek to avoid a collision. Whether he has taken the proper course depends upon all the circumstances of the case. Hagenah v. Bidwell, 46 Cal.App. 556, 560, 189 P. 799; Hill v. Peres, 136 Cal.App. 144, 148, 28 P.2d 944, 946. In Hill v. Peres, supra, the plaintiff who turned to the left in his attempt to avoid the collision had a clearance to his right of nineteen feet bounded by a fourteen-inch curb, yet the court held that his choice of hazards confronting him was compatible with due care and ‘that he acted as a man of ordinary prudence and caution would have acted under the same circumstances cannot be said as a matter of law to be without support in the evidence.’ In the instant case, Spence had no such escape route. To his right was an embankment; in front of him was the on-rushing defendant. The only potentially safe place was to his left. He took the action that any quick-thinking and reasonably prudent man would have taken under the circumstances.

The trial court, at the request of plaintiff, instructed the jury in the language of sections 527, 530 and 544 of the Vehicle Code. Section 527 provides that drivers of vehicles proceeding in opposite directions shall pass each other to the right. Section 530 governs the overtaking and passing of motor vehicles and is the section which the defendant violated. Section 544 provides: ‘No person shall turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety and then only after the giving of an appropriate signal in the manner provided herein in the event any other vehicle may be affected by such movement.’ Immediately following these instructions, the court gave BAJI No. 149 to the effect that conduct in violation of any of such code sections constituted negligence per se.

It is obvious that in turning to the left in the manner he did, Spence violated the strict letter of both sections 527 and 544. The jury, therefore, under the instruction in BAJI No. 149 was required to find that there arose a legal presumption that Spence was contributorily negligent. It is true that No. 149 contains the modifying provision: ‘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.’ But this did not tell the jury that Spence, when ‘suddenly and unexpectedly confronted with peril, arising from either the actual presence, or the appearance, of imminent danger to himself or to others, is not expected nor required to use the same judgment and prudence that is required of him in the exercise of ordinary care in calmer and more deliberate moments.’ Leo v. Dunham, 41 Cal.2d 712, 264 P.2d 1, 2, supra. The jury was not told that ‘ordinary prudence’ may be of a lesser degree at a time of imminent danger than under ordinary traffic conditions. No instruction was given or requested on the subject of imminent danger. Had one been read to the jury, the verdict might well have been for plaintiff. When the proper rule of law is applied to the evidence in this case, the only rational inference that can be drawn is that Spence was not guilty of contributory negligence as a matter of law.

Respondent urges that the jury might have deduced that Mr. Spence was traveling at an unsafe speed. But the only evidence of his speed is his own testimony that he proceeded at 50 miles per hour. Respondent offered no evidence that under the traffic and weather conditions at the time and place this speed constituted a violation of the basic speed law. Veh.Code, § 510. Nor did respondent offer any evidence that at the place of the accident the highway was posted to limit the lawful speed to less than 50 miles per hour. This contention is predicated upon Spence's testimony that he first saw respondent's car in the wrong lane when it was two hundred feet away and moved to apply his brakes; that Spence's skid marks began 39 feet from the point of collision; that by allowing reaction time of one second, Spence moved 161 feet in one second, or between 60 and 70 miles per hour. But this is pure speculation. Spence's estimate of two hundred feet was at best a pure guess, made at a time when imminent death was rushing at him and he was required to make a split-second decision as how best to save himself and his family. But this reasoning does not account for the movement of respondent's automobile. To justify such deduction it would be necessary to assume that Doran's car came to a dead stop at the point where it was first seen by Spence. There is no evidence to warrant such an assumption. It is not even a probability. No inference of negligence arises from the evidence of Spence's speed. An inference cannot be based upon mere possibilities, but only on probabilities. Sanders v. MacFarlane's Candies, 119 Cal.App.2d 497, 500, 259 P.2d 1010. But even if it be assumed that Spence was traveling at too great a speed, there is still no evidence that his speed was a contributing factor in the proximate cause of the collision.

Despite the fact that the cars collided in the west-bound lane, the freedom of Mr. Spence from negligence and the negligence of respondent are so emphatically established that the judgment must be set aside.

The judgment is reversed.

I dissent. While inclined to agree with the conclusions reached by the majority I am not free to do so, for that requires a weighing of fact inferences in a manner not permissible in a reviewing court.


1.  Exhibits 1 and 2, photographs of highway, demonstrate the truth of such admission.

MOORE, Presiding Justice.

FOX, J., concurs.