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

Jesus VASQUEZ, Plaintiff and Appellant, v. Robert ALAMEDA, Martin Produce Co., Adam E. Rutkowski, Gilboy Transportation Co., Daniel L. Greenley, Defendants and Respondents.*

No. 16964.

Decided: March 28, 1957

Malcolm K. Campbell, Boccardo, Blum, Lull & Niland, San Jose, Edward J. Niland, San Jose, of counsel, for appellant. Hoge, Fenton & Jones, Monterey, for respondent Robert Alameda. Low & Duryea, San Francisco, for respondents Rutkowski & Gilboy Transportation Co. Campbell, Custer, Warburton & Britton, San Jose, W. R. Dunn, Burlingame, of counsel, for respondent Greenley.

After denial of a motion for new trial, plaintiff appealed from a judgment after jury verdict in favor of all defendants in a personal injury action, raising the sole question of the correctness of the instructions.


Plaintiff was struck while standing on E1 Camino Real near Mariani's Restaurant outside Santa Clara, at about 1 a. m. on March 16, 1954. There were four vehicles involved directly or indirectly in the accident. Plaintiff worked as a dishwasher in the restaurant and went into the parking lot at the rear thereof, to be taken home by his brother-in-law, Vargas, in the latter's car, a Plymouth. It was raining. Vargas could not start the car, so the both of them pushed it out of the lot and onto the driveway leading to the highway. The night janitor then helped plaintiff push the car (Vargas in it, steering) onto the southerly lane of the highway. (It is a three-lane highway. The southerly lane is nearest the restaurant and used for eastbound traffic. Adjoining this lane on the south is a hard shoulder about 6 feet in width and south of that a flat area of dirt or gravel.) They pushed the car down the highway about 200 feet, stopping it in the southerly lane. Plaintiff went back two or three car lengths and stood 5 to 6 feet off the paved portion of the highway. He flagged down a Studebaker car driven by defendant Greenley, who stopped in the center lane opposite the Plymouth. Plaintiff then went to a position on the shoulder 4 to 6 feet from the southerly lane and opposite the Plymouth. Greenley then backed the Studebaker into a position about 2 feet behind the Plymouth on an angle, about half of the car in the center lane and about half of it in the southerly lane. (Apparently he intended to turn his wheels to the right and then push the Vargas car.) Looking towards Greenley's car (both cars were lighted) plaintiff saw the lights of another vehicle approaching from the west. He could not tell whether it was a truck or a car. The lights were in the southerly lane 15 to 20 feet from him. They appeared to be going straight down that lane. They were not on the shoulder. The next thing plaintiff knew he was coming to his senses under a truck, that of defendant Gilboy Company operated by defendant Rutkowski. He was then on the dirt on the left side of the truck. He testified that at no time had he been standing on the pavement. Vargas testified that when plaintiff was flagging the Greenley car he saw plaintiff standing 1 or 2 yards behind the right rear of the Plymouth. He did not see him again until after the accident. Vargas, who was sitting in his car, saw in his rear view mirror the lights of the approaching truck. It came at some speed and pulled to the right onto the shoulder. When the vehicles came to rest, the back end of the truck was on the shoulder about opposite Vargas' car and about a car's width away. The front of the Greenley car was then about 1 1/2 yards behind Vargas' car.

Greenley testified that as he approached he saw plaintiff, whom he had no difficulty in seeing, in the southerly lane flagging frantically. Greenley stopped in the center lane to the left of the Plymouth. Vargas asked him to give a push so after looking back and finding the traffic to be well up the highway (there were headlights about half a mile away) he backed his car. When he had backed about three lengths, he saw a truck coming down the outside. It was then about three lengths behind him, in the process of leaving the southerly lane, and was at least partly on the shoulder. Realizing that trucks have wide beds, Greenley was afraid to back further and stopped his car at approximately a 45 degree angle, most of the car in the southerly lane, and a part projecting into the center lane. As he was about to turn his wheels to get in behind the Plymouth, his car was struck from behind by an Oldsmobile driven by defendant Alameda (owned by defendant Martin Produce Company). The truck was then just opposite him between his car and the Plymouth. The truck was going 5 to 10 miles per hour but coming to a stop. Greenley never saw the lights of the Alameda car. As Greenley was backing up he saw plaintiff standing towards the outer edge of the pavement about a car's length behind the Plymouth. At that time the truck had not yet reached the Greenley car. He did not see plaintiff again and does not know what hit plaintiff nor where he was when hit. The Alameda car struck with terrific impact, the left side of Greenley's car by the driver's seat, driving the car into the Plymouth. Greenley's car was shoved ahead at least three car lengths and the Plymouth at least one. The truck stopped on the shoulder opposite the Plymouth. There was room in the center lane for the Alameda car to have passed. Greenley judged from Alameda's actions that he had been drinking. Alameda accused Greenley of pulling out of Mariani's driveway in front of him. Greenley admitted that in talking to the investigating officers he discussed how plaintiff could have been knocked over into the truck by Greenley's car when it was struck by Alameda's car. An officer testified that Greenley told him that as he was backing he was hit by Alameda and knocked into the Vargas car and against plaintiff who was standing there. Vargas told the officer that the Greenley car hit plaintiff.

Rutkowski testified that he had been following the Greenley car in the southerly lane and 450 to 500 feet from it. He saw Greenley's brake light go on when he was 350 to 400 feet from him. Rutkowski reduced the truck's speed from 40 to 45 miles per hour to 38 to 40 miles. He saw Greenley turn into the center lane about 250 to 300 feet ahead of him. He did not recall seeing plaintiff at this time, although in his deposition he said he saw a man standing in the road at this time. When Greenley stopped in the center lane Rutkowski was about 60 to 65 feet behind him. He then saw Greenley start to back. Figuring he might run into Greenley Rutkowski turned off onto the shoulder at his right. He was then going 25 to 30 miles an hour. He drove partly on the shoulder and partly on the dirt. As he was passing Vargas' car at 5 to 10 miles per hour he saw plaintiff for the first time. Plaintiff was then behind the Plymouth in the southerly lane of the highway. About half the Greenley car was in the center lane. Rutkowski never saw the lights of the Alameda car, saw its motion or knew that it was on the road. The rear of his truck had passed about 5 feet beyond the Plymouth when he heard a loud crash. He did not see plaintiff under his truck and did not know whether or not he had been lying there. Rutkowski smelled liquor on Alameda's breath. The latter accused Rutkowski of driving the Greenley car. He saw plaintiff after he was carried into the restaurant. Plaintiff said he had been hit by either a ‘truck’ or a ‘trunk.’ Rutkowski and an officer examined the truck but could find no marks on it. Shortly after the accident there was a hard rain.

Alameda testified that about 125 or 150 yards from Mariani's he saw red tail lights ahead of him. He was then going 30 to 35 miles an hour. About 90 to 110 yards away from them he moved into the middle lane to pass. There were no lights in that lane. He saw no one standing in the highway and never saw plaintiff. He saw two red lights in the southerly lane and some to the right thereof. He did not again look at the lights in the southerly lane. He could not say whether he reduced his speed. About 20, 30 or 40 yards or 30 to 40 feet away he saw a car diagonally in front of him, as if it had dropped from the sky. It seemed to take up the whole lane. He went for his brakes and a second later the collision occurred. He could not say how fast he was going but it must have been less than 35 miles an hour. He accused someone of driving out of Mariani's in front of him because he could not figure how otherwise the car could get in the position of the Greenley car. He had two glasses of wine with his dinner about 11 p. m. An officer testified Alameda told him he was right on the Greenley car before he saw anything. The officer did not consider that Alameda was under the influence of intoxicating liquor. The point of impact between the Alameda car and the Greenley car was located as being right on the line between the southerly and the center lanes. All the damage to Alameda's car was confined to his right front fender and grille. After the collision Alameda's car was 15 feet ahead of the point of impact.


1. The most serious question arises concerning the instruction giving section 582, Vehicle Code.1 This instruction should not have been given. It could not apply to plaintiff who was not the person who left the Plymouth on the highway, even though he was assisting Vargas in pushing it there. It was not his car nor did he direct it, nor have the right to direct it. Vargas sitting at the wheel was the person who determined that it should be stopped on the highway rather than on the shoulder.

The situation was similar to that in Moore v. Franchetti, 22 Cal.App.2d 75, 70 P.2d 492. There the plaintiff was riding as a guest in an automobile that was struck from the rear by another automobile. The car in which the plaintiff was riding continued down the highway 30 or 40 feet and stopped on the highway. The plaintiff and the driver got out, examined the car. Then to determine the extent of the damage to it, the driver entered the car and attempted to start the motor. The plaintiff stood beside the car, half on and half off the highway. A third car came along, collided with the last mentioned car and struck the plaintiff. It was contended that the plaintiff was negligent in not removing the automobile in which she had been riding from the highway. The court held that as the car was under the management and control of the driver, ‘there was no reasonable ground to charge her with the duty of its removal * * *.’ 22 Cal.App.2d at page 78, 70 P.2d at page 494.

The jury could have understood only that the above instruction applied to plaintiff. Vargas was not a party to the action. It told the jury in effect that plaintiff was guilty of negligence as a matter of law and that it was incumbent upon him to prove by a preponderance of the evidence that it was not practicable to drive off the main travelled portion of the highway. There was no reason why the car could not have been kept off the highway, but plaintiff could not be charged with failure to do so as he had no control of the car. Thus the instruction required an impossibility of him. Further, the instruction said that a violation of the section, (that is, this negligence of plaintiff as a matter of law) ‘may be the proximate cause’ of the accident which followed. This would place the blame for the accident on plaintiff as a matter of law if the jury were to find that the stopping of the car was a proximate cause of all that followed including plaintiff's injury. Whether plaintiff's participation in moving the car onto the highway and leaving it there was negligence which proximately contributed to his injury was a question of fact for the jury and not one of law.

This is a peculiar case. Undoubtedly plaintiff was injured by being struck by one of the vehicles involved in the accident. The jury could have found as a matter of fact that the truck driver under the circumstances here was negligent in driving his truck to the right of the paved portion of the highway, and that he should have seen plaintiff if plaintiff were standing where he claimed to have been when hit. Also, it could have found to the contrary. It could have found that Greenley was negligent under the circumstances in backing up his car and leaving it standing (or even moving forward) partially in the middle lane and that such negligence was a proximate cause of plaintiff's injury whether he was hit by the truck or by the Greenley car being pushed into him by the Alameda car. Here, too, the jury could have found to the contrary. It could have found that Alameda under the circumstances was negligent in hitting the Greenley car and that was either the sole cause or a cause of plaintiff's injury.2 If the accident was produced by the concurrent effect of two or more separate wrongful acts, each would be a proximate cause of the injury, and neither would operate as an efficient intervening cause. Whether such was the situation here was a question of fact for the jury. Deshotel v. Atchison, T. & S. F. Ry. Co., 144 Cal.App.2d 224, 300 P.2d 910. Taylor v. Oakland Scavenger Co., 17 Cal.2d 594, 602, 110 P.2d 1044. It could have found that plaintiff was or was not contributorily negligent. Under the circumstances, giving the instruction seemingly telling the jury that because of the position of Vargas' car plaintiff was guilty of negligence as a matter of law was prejudicial error, even though the jury, had it been left to determine the question as one of fact, might have found plaintiff to be contributorily negligent.

2. Assumption of risk. This instruction should not have been given. ‘The defenses of assumption of risk and contributory negligence are based on different theories. Contributory negligence arises from a lack of due care. The defense of assumption of risk, on the other hand, will negative liability regardless of the fact that plaintiff may have acted with due care. (See Prosser on Torts [1941], p. 377.) It is available when there has been a violuntary acceptance of a risk and such acceptance, whether express or implied, has been made with knowledge and appreciation of the risk. (See Rest., Torts, § 893.) Where the facts are such that the plaintiff must have had knowledge of the hazard, the situation is equivalent to actual knowledge, and there may be an assumption of the risk, but where it merely appears that he should or could have discovered the danger by the exercise of ordinary care, the defense is contributory negligence and not assumption of risk. Hayes v. Richfield Oil Corp., 38 Cal.2d 375, 385, 240 P.2d 580; see Prosser on Torts [1941], p. 386.’ Prescott v. Ralph's Grocery Co., 42 Cal.2d 158, 161–162, 265 P.2d 904.

Defendants base their claim that the instruction was properly given upon the testimony of plaintiff to the effect that when he was pushing the car or standing on the pavement he then knew that a car might hit him. Had the instruction been prefaced by a requirement that the jury first find that plaintiff was on the pavement when hit the instruction would have been proper. But without that limitation it was improper because there was no evidence that plaintiff knew that in standing on the shoulder he likely would be hit. The jury could have found that by exercise of ordinary care he could have discovered the danger and that having failed to do so he was guilty of contributory negligence, but there is no evidence from which the jury could have found the necessary element of assumption of risk, namely, that he must have known of the hazard.

3. The instruction on concurrent causation (BAJI 4th ed. #104–C.2) has been criticized in Werkman v. Howard Zink Corp., 97 Cal.App.2d 418, 218 P.2d 43, on the ground that it states that the negligence of one person is not a proximate cause of an accident in which the negligence of another is involved unless the first person foresaw or by exercising ordinary care would have foreseen that the other person would conduct himself as he actually did. The true rule is: ‘The question to be decided by the jury was not whether she did foresee, or by the exercise of ordinary care would have foreseen, the identical consequence that happened, in order that her negligence be a proximate cause of the injury. The question was whether it was reasonably foreseeable that injury was likely to occur.’ Werkman case, supra, 97 Cal.App.2d at page 425, 218 P.2d at page 48. It would be well not to give it again.

4. Favoring defendants. Whether plaintiff's burden was overemphasized in the instructions as was done in Taha v. Finegold, 81 Cal.App.2d 536, 184 P.2d 533, is a very close question in this case. Many instructions on defendants' theory of the case were given which were repetitive and recited the same rule in differing ways. While, as there were three defendants, each of whom was entitled to have its theory instructed upon, and hence of necessity more instructions were required than ordinarily, nevertheless many of the instructions could have been combined. There were many formula instructions given which could have been avoided. Some of these were favorable to plaintiff although most of them favored defendants. As we pointed out in Taha v. Finegold, supra, 81 Cal.App.2d at page 543, 184 P.2d at page 536, although the giving of formula instructions is not necessarily prejudicial error, they ‘should not be given.’ As this case will have to be retried we deem it unnecessary to determine whether there was prejudicial overemphasis in the instructions. Such a question may easily be avoided on the retrial.

5. The court instructed that contributory negligence has to appear by a preponderance of the evidence. If on the retrial plaintiff desires specific instructions on the subject he can offer them.

6. Unavoidable accident. This type of instruction has been held proper in Parker v. Womack, 37 Cal.2d 116, 230 P.2d 823, as saying in effect that a jury might find the accident to be an unavoidable one, where a plaintiff has failed to prove that a defendant was negligent or that his engligence, if any, did not proximately cause the accident. Hyman v. Market Street Ry. Co., 41 Cal.App.2d 647, 107 P.2d 485, relied upon by plaintiff, has been overruled, or at least modified, by the Parker case. See Shiya v. Reviea, 122 Cal.App.2d 155, 264 P.2d 190.

7. Plaintiff offered and the court refused an instruction on the presumption of due care. Plaintiff testified that from the time he saw the truck's headlights 15 to 20 feet away until he regained consciousness under the truck, he was unable to remember anything. Where a party to an action, by reason of loss of memory, is unable to testify respecting his conduct at and immediately before the accident and produces no witness who testifies to such facts, he is entitled to an instruction of due care. Scott v. Burke, 39 Cal.2d 388, 247 P.2d 313; Simon v. City and County of San Francisco, 79 Cal.App.2d 590, 180 P.2d 393. The instruction should not be given where the plaintiff's evidence discloses acts and conduct immediately prior to the time in question. Speck v. Sarver, 20 Cal.2d 585, 128 P.2d 16. Here plaintiff and his witness Vargas testified to plaintiff's movements placing him in the position where he was hit. Whether he was contributorily negligent depends upon his actions up to that point. The brief space of time (not as much as two seconds) which then elapsed before he was hit had no bearing on the question, and therefore plaintiff was not entitled to the presumption. The situation is similar to that in Mundy v. Marshall, 1937, 8 Cal.2d 294, 65 P.2d 65, where the testimony placed the deceased crossing the street diagonally outside a crosswalk. He was last seen in the center of the street a brief moment before he was hit. It was held: ‘The manner in which the decedent was crossing the street having been covered by the plaintiff's own evidence, there is no room for the operation of the presumption that he was exercising due care * * *.’ 8 Cal.2d at page 296, 65 P.2d at page 66.

We find no error in the other instructions criticized by plaintiff nor in the refusal to give the instructions offered by plaintiff and not given.

The judgment is reversed.


1.  ‘Upon any highway in unincorporated areas no person shall stop, park or leave standing any vehicle, whether attended or unattended, upon the main travelled portion of the highway when it is practicable to stop, park or so leave such vehicle off such part or portion of said highway but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicle shall be available from a distance of 200 feet in each direction upon such highway. This section shall not apply upon a highway where the roadway is bounded by adjacent curbs. ‘This section shall not apply to the driver of any vehicle which is disabled in such a manner and to such an extent that it is impossible to avoid stopping and temporarily leaving such disabled vehicle on the main travelled portion of a highway. (Given at request of defendant) ‘A violation of this section may be the proximate cause of an accident where the unlawfully parked vehicle is struck by another vehicle. (Given at request of defendant) ‘Conduct which is in violation of any section of the California 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. (Given at request of defendant) ‘One who parks his automobile upon the travelled portion of a highway is prima facie a violator of the law, and a prima facie case of negligence is thereby established, whereby it becomes encumbent upon such person to prove by preponderance of evidence that it was not practicable to drive off the main travelled portion of the highway. (Given at request of defendant)’

2.  Evidence that a moving vehicle has collided with another vehicle ahead of it is ‘at least some proof of negligence on the part of the driver of the colliding vehicle.’ Cartmill v. Arden Farms Co., 83 Cal.App.2d 787, 789, 189 P.2d 739, 740; Linde v. Emmick, 16 Cal.App.2d 676, 682, 61 P.2d 338. It is doubtful if Alameda's testimony cleared him of that negligence.

BRAY, Justice.

PETERS, P. J., and FRED B. WOOD, J., concur.