BUTIGAN v. Yellow Cab Company, a corporation, Jack E. Bland, Fred Wurm, Respondents.*

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District Court of Appeal, Second District, Division 3, California.

George BUTIGAN and Bobbette Butigen, husband and wife, Plaintiffs and Appellants, v. YELLOW CAB COMPANY, a corporation, Jack E. Bland, Fred Wurm, et al., Defendants. Yellow Cab Company, a corporation, Jack E. Bland, Fred Wurm, Respondents.*

Civ. 21989.

Decided: April 22, 1957

Raoul D. Magana, Victor E. Kaplan and Monta W. Shirley, Los Angeles, for appellants. H. T. Ellerby, Henry F. Walker, Los Angeles, for respondent Wurm. Kenneth J. Murphy, Henry E. Kappler, Los Angeles, for respondent Yellow Cab Co.

This is a simple case of a collision in a business district between a taxicab of Yellow Cab Company in which plaintiff Bobbette Butigan was riding as a passenger and a passenger car being operated by Fred Wurm. On motion of George Butigan the action was dismissed as to him. Verdict and judgment were against Bobbette (to be referred to as plaintiff and appellant) and after denial of her motion for new trial, she appeals from the judgment.

The sole ground of the appeal is claimed error in instructions given. The court read 81 instructions, 30 requested by plaintiff, 39 requested by defendants and 12 requested by plaintiff and defendants. In issue were questions of negligence of either of the drivers, proximate cause and damages. The cab company had the duty to exercise the highest degree of care; Wurm was required to exercise only ordinary care.

The essential facts are the following. Bobbette, who resided on the east side of Silverlake Boulevard, called a cab, which appeared and parked at the curb headed north; she entered the cab, which proceeded north toward the intersection of Silverlake and Effie Streets, where there were traffic signals. Jack Bland, driver of the cab, decided to turn around on Silverlake Boulevard. He testified that he was intending to turn around by going into a driveway on the west side of the street, backing out and turning south, but that when the cab was part way across the center of the street his motor stopped; he endeavored for some one and a half to three seconds to start it but was unsuccessful; he saw no traffic approaching from the north. Wurm coming south ran into the righthand side of the cab and Bobbette was injured. Bland testified that he had had the cab in the shop on the previous day because the motor had been stalling due to the fact that it was running on a thin mixture to save gas. Wurm testified that as he came south the Cab pulled out in front of him and that he had no chance to turn or stop before running into it.

The first point made by plaintiff is that the court erred in giving an instruction on ‘unavoidable or inevitable accident.'1 The giving of this instruction was error for two reasons, first, because it effectively stated that the cab company had only a duty of ordinary care and, second, because the evidence did not warrant an instruction on unavoidable accident.

The jury was instructed that the cab company was required to exercise the highest degree of care. The criticized instruction told the jury in effect that if the defendants exercised ordinary care the accident would be considered unavoidable even though it could have been avoided ‘by the exercise of exceptional foresight, skill or caution,’ and further that the accident was not unavoidable if any defendant failed to exercise ordinary care. The practical effect of this instruction was to inform the jury that the accident could be found to have been unavoidable if the cab company exercised ordinary care. Although the duty of the cab company was properly defined in another instruction, it will appear from our further discussion that the jury, in all probability, followed the erroneous instruction. See Finley v. City & County of San Francisco, 115 Cal.App.2d 116, 251 P.2d 687. Defendants do not deny that it was error to give it but they say that some of the other instructions requested by plaintiff were susceptible of a construction that the cab company had only a duty to use ordinary care and that, therefore, plaintiff may not complain of error in the defendants' instruction. Different degrees of care were demanded of the defendants and it was necessary that that distinction be observed throughout the instructions. In order to accomplish this, special instructions should have been prepared by counsel. It could not be accomplished by taking at random standard instructions on negligence from a book which, though applicable to Wurm, were inapplicable to the cab company. Our attention is called to several instructions given at the request of plaintiff which it is said stated the duty of the cab company to be substantially the same as that stated in the erroneous instruction on unavoidable accident. Defendants argue that if the statements were of the same tenor plaintiff cannot complain of the error. At the request of plaintiff and defendant Wurm the court defined negligence as the failure to exercise ordinary care, and in another instruction requested by plaintiff and defendant Wurm the jury was informed that negligence was one of the issue in the case. Although the court instructed at plaintiff's request that the cab company was required to use the utmost care and diligence, the abstract instructions on negligence did not state that those instructions applied only to the conduct of Wurm. The instructions, of course, should have made it clear that the duty of ordinary care was applicable only to him, and that the rule of utmost care was applicable to the cab company. This would have required more effort on the part of the plaintiff than was involved in pursuing the easy method of taking abstract instructions from a form book. Certainly plaintiff's instructions on ordinary care were not intended to relieve the cab company of any part of its duty. Notwithstanding the lack of clarity in the instructions, we are far from convinced that, when considered as a whole, they would have been understood by the jury as placing the two defendants under the same duty. We are of the opinion that plaintiff is not precluded from asserting error in the giving of the instruction on unavoidable accident. We are further of the opinion that the error was prejudicial.

The next question is whether, regardless of the form of the instruction, it was error to give it. The contentions of the parties have led us to an inquiry into the case law in California upon the subject of unavoidable accident with respect to both the meaning of the doctrine of unavoidability and also to the matter of instructions upon that phase of nonliability.

As generally understood, the term ‘unavoidable accident’ denotes a cause of an accident consisting of some conduct, condition or occurrence operating independently of the conduct of the parties and which would not have been foreseen in the exercise of ordinary care. The question is whether California follows this rule or another one, namely, that the so-called rule of ‘unavoidable accident’ is applicable to every case of an accident where the question of negligence is one of fact, even in cases where there is no evidence of a proximate cause, unforeseeable and uncontrollable by the parties. If the latter rule is the correct one, instructions on unavoidable accident are properly given even in accident cases where the question of negligence must be determined solely from the conduct of the parties. It is a serious question.

Absence of negligence and unavoidability are one and the same thing. Prosser (Second Edition, p. 167) says that an unavoidable accident is one caused by some event or happening that was not reasonably to be anticipated. It is a universal rule. 65 C.J.S., Negligence, § 244, p. 1096. The question of negligence encompasses all the causes of an accident, the acts of the parties and also those causes which operate independently of the acts of the party or parties charged with negligence. To litigants who seek to prove negligence and are confronted with the claim of unavoidability of the accident, the term ‘unavoidable accident’ has a limited connotation; it has relation to those causes which are distinct from and operate indepently of the actions of the parties, but it has no relevancy where the question of negligence must be decided on the basis of their actions alone, and, although in the absence of evidence of negligence, the accident is unavoidable in the sense that it occurred without fault of the party charged, that is not the unavoidability that justifies special instructions. In practice the rule of unavoidability is regarded as a special theory or rule of nonliability. If this were not so the label ‘unavoidable’ or ‘inevitable’ would not have been given to the type of accidents that comprise the ‘unavoidable accident’ category.

With the exception of some cases of comparatively recent origin to be hereafter discussed, there will not be found in the reported cases any departure from the rule that unavoidability is a false quantity unless there has entered into the case evidence of some cause, operating independently of the conduct of the parties, and which would not have been foreseen in the exercise of ordinary care. We refer to a few cases that are typical of the entire class. Graham v. Consolidated Motor Transport Co., 112 Cal.App. 648, 297 P. 617 (child ran into street); Creamer v. Cerrato, 1 Cal.App.2d 441, 36 P.2d 1094 (same); Jolley v. Clemens, 28 Cal.App.2d 55, 82 P.2d 51 (horse suddenly appeared on highway); Zaferis v. Bradley, 28 Cal.App.2d 188, 82 P.2d 70 (driver's foot became wedged between pedals); Smith v. Harger, 84 Cal.App.2d 361, 191 P.2d 25 (small boy pushing on back of dump truck); Merry v. Knudsen Creamery Co., 94 Cal.App.2d 715, 211 P.2d 905 (brake failure); La Porte v. Houston, 33 Cal.2d 167, 199 P.2d 665; Barber v. Gordon, 111 Cal.App. 279, 295 P. 377; Doggett v. Lacey, 121 Cal.App. 395, 9 P.2d 257 (cases of defective automobile mechanism not due to driver's negligence); Yates v. J. H. Krumlinde & Co., 22 Cal.App.2d 387, 71 P.2d 298 (gust of wind caused gate to slam shut). Prosser (Second Edition, p. 167) mentions Hester v. Hall, 17 Ala.App. 25, 81 So. 361 (hogs darting in front of a car); Rainwater v. Boatright, La.App., 61 So.2d 212 (child darting in front of a car); Holland v. Bartch, 120 Ind. 46, 22 N.E. 83 (boy on bicycle who frightens horse); Kelly v. Gagnon, 121 Neb. 113, 236 N.W. 160 (automobile driver whose tire blows out). Such cases could be listed at great length, 65 C.J.S.Negligence, § 21, pp. 430–433, but it is sufficient to say that in every jurisdiction the doctrine of unavoidable accident is so understood and applied in the above class of cases.

Under the true concept of the rule, an unforeseeable cause cannot exonerate a party charged with negligence unless it is shown to have been the sole proximate cause of the accident, and there is no justification for giving an unavoidable accident instruction unless the jury could reasonably conclude that the sole proximate cause of the accident was one that was beyond the reasonable anticipation and control of the parties.

The cab company ignores this settled rule and contends that independently of the existence of any evidence of a cause of the accident beyond the control of the parties it was proper to give the instruction on unavoidable accident because the instruction is properly given in any case where the question of negligence is one of fact. For this proposition the company cites Parker v. Womack, 37 Cal.2d 116, 230 P.2d 823, 827. That was an ordinary case of a collision at an intersection in which the only evidence of negligence was to be found in the conduct of one or both of the parties. There was no outside cause. But the court said: ‘Upon the evidence it was the duty of the jury to decide which, if either, of the drivers failed to use due care in entering the intersection and the Womacks were entitled to have the jury instructed in regard to the rule of unavoidable accident.’ This statement was based upon one which preceded it reading as follows: ‘But the application of the rule allowing the defense of unavoidable accident has not been limited to cases where the defendant relies upon evidence of a proximate cause beyond his control. An instruction stating the law regarding the right of a defendant from exemption from liability because the accident could not have been avoided has also been approved where there was no evidence that it was caused by any factor other than the lack of care.’ The court cited as authority Jolley v. Clemens, 28 Cal.App.2d 55, 82 P.2d 51 and Pearce v. Elbe, 98 Cal.App. 101, 276 P. 389.

In Pearce v. Elbe, it was held that a defendant charged with negligence could properly defend upon the ground that the accident was unavoidable under a general denial of negligence and the court added that it was therefore proper for the court to give an instruction on unavoidable accident. This holding related entirely to the matter of pleading. The court did not decide, nor even consider, whether the instruction was improperly given for the reason that there was no evidence that the accident was unavoidable. Jolley v. Clemens was a case in which Clemens, who was driving an automobile, and Joseph Melvin Jolley, the son of plaintiffs Jolley, while riding a motorcycle, ran into a horse that had strayed onto the highway. That was a typical unavoidable accident situation. The only holding in the case that is of any interest was that it was error to instruct that the burden of proof was upon the defendant to establish as a defense the unavoidability of the accident. The cases cited by the court in Parker furnish no support for the statements we have quoted, and we think no supporting authority can be found in the reports of our state or in any other jurisdiction.

Pearce v. Elbe, supra, has been cited and relied upon in some cases as if it held that an instruction on unavoidable accident is proper without regard to evidence of the existence of some possible cause of the accident operating independently of the actions of the parties. Sitkei v. Ralphs Grocery Co., 25 Cal.App.2d 294, 77 P.2d 311 and Schubkegel v. Dunn, 31 Cal.App.2d 312, 87 P.2d 875, are such cases. In Stevenson v. Fleming, 47 Cal.App.2d 225, 117 P.2d 717, 721, an instruction on unavoidable accident was given and it was contended that this was error for the reason that there was no evidence that the accident was unavoidable. The court, after stating that it was generally true that such an instruction should not be given unless there was some evidence that the accident was unavoidable (citing cases) added: ‘However, the following rule announced in Pearce v. Elbe, 98 Cal.App. 101, 276 P. 389, 391, should be controlling here’ (quoting from the cited case). Obviously the court was reluctant to follow that decision. Martindale v. Atchison, T. & S. F. Ry. Co., 89 Cal.App.2d 400, 201 P.2d 48, followed the decision in Stevenson and for identical reasons.

In the following cases subsequent to the decision in Parker it was held that there was no error in giving the instruction for one of two reasons, namely, upon authority of the statements in Parker we have previously quoted, or upon the ground that absence of negligence and existence of an unavoidable cause are one and the same thing, that the jury had been adequately instructed in the law of negligence, and that the unavoidable accident instructions merely stated absence of negligence in another manner. Sherrillo v. Stone & Webster Eng. Corp., 110 Cal.App.2d 785, 244 P.2d 70; Smith v. City & County of San Francisco, 117 Cal.App.2d 749, 256 P.2d 999; Hooper v. Bronson, 123 Cal.App.2d 243, 266 P.2d 590; Carroll v. Beavers, 126 Cal.App.2d 828, 273 P.2d 56; Squillante v. Barr, 131 Cal.App.2d 175, 280 P.2d 216; Hughes v. MacDonald, 133 Cal.App.2d 74, 283 P.2d 360.

In the following cases decided since Parker v. Womack it was held that refusal to give the instruction was not prejudicial error, the reason being that it is unnecessary when the jury has been sufficiently instructed in the principles of negligence. McMahon v. Marshall, 111 Cal.App.2d 248, 244 P.2d 481; Lloyd v. Southern Pacific Co., 111 Cal.App.2d 626, 245 P.2d 583; Taylor v. Luxor Cab Co, 112 Cal.App.2d 46, 246 P.2d 45; Johnston v. Orlando, 131 Cal.App.2d 705, 281 P.2d 357; Goodwin v. Braden, 134 Cal.App.2d 34, 285 P.2d 330; Lilley v. Key System Transit Lines, 136 Cal.App.2d 737, 289 P.2d 517; Slovick v. James I. Barnes Constr. Co., 142 Cal.App.2d 618, 298 P.2d 923. The earlier cases were to the same effect. In Guay v. American President Lines, 81 Cal.App.2d 495, 513, 184 P.2d 539, 549, the court stated: ‘Objection is made to the trial court's failure to give a proffered instruction that defendant was not liable if the injuries were the result of unavoidable accident. In Stein v. United Railroads, 159 Cal. 368, at page 373, 113 P. 663, 665, it was held not error to refuse to instruct on unavoidable accident, because ‘A juror would know that such was the rule without instruction and it would seem absurd to burden the record with a formal statement of a truth so self-evident.’ In Gunter v. Claggett, 65 Cal.App.2d 636, at page 642, 151 P.2d 271, 274, the court said that ‘* * * unavoidable accident is simply another way of urging that defendant was not negligent. The jury has found, and the finding is supported, that defendant was negligent. No prejudicial error occurred in failing to instruct on this issue.’ The jury was fully and fairly instructed on the general rules of liability for negligence. It has impliedly found that defendant's negligence solely and proximately caused the accident. Such finding is supported by the evidence, and the permissible inferences therefrom. Under these circumstances no error was committed in failing to instruct on unavoidable accident.'

The cases decided by the district courts of appeal subsequent to Parker v. Womack have held that it is not error to give an instruction on unavoidable accident and that it is not error to refuse it. This poses the obvious question ‘Why give it at all?’ We think the answer is that it should not be given. In unbroken sequence the cases have held that instructions on negligence are sufficient. That had been the reason for holding that it is not error to give the instruction, or to refuse it. Ever since Parker v. Womack the courts have not considered whether there was evidence of an unavoidable cause which could be found to have been the sole proximate cause of the accident. In that case and in the cases we have listed in which the giving of the instruction was held not to be error there was no evidence of an extraneous cause that would have justified a finding that it was the sole proximate cause of the accident. To merely hold that giving the instruction was not error because absence of negligence and unavoidability are the same does not fully answer the problem. How can the courts be sure that the instruction does a plaintiff no harm and gives the defendant no advantage when there is no evidence of an outside, unavoidable cause to which the instruction could relate? Is there not an implication that unavoidable accident is something different from negligence when the court, after instructing on negligence, gives another instruction commencing: ‘In law we recognize what is termed an unavoidable or inevitable accident’? The only possible negative answer to this question is that the instruction is not deceptive because it proceeds to explain that the rule of ‘unavoidable or inevitable accident’ really means nothing at all and should not have been mentioned in the first place.

Litigants charged with negligence have good reason to believe there is some advantage in having the jury instructed on unavoidability. No one knows whether the defendants who have prevailed in actions in which the instruction was given derived some undeserved benefit from it. We do not see how our courts can feel assured that all jurors can comprehend the meaning and proper application of the rule of unavoidability, nor can we see any virtue in giving an instruction which, admittedly, can do no good and may cause harm. While it may not be questioned that the instruction need not be given when the jury is fully instructed on negligence, a better reason for declining to give it would be that there is no evidence of unavoidability, if that be the fact. See Riley v. Berkeley Motors, Inc., 1 Cal.App.2d 217, 36 P.2d 398; Jaques v. Southern Pac. Co., 8 Cal.App.2d 738, 48 P.2d 63; Barr v. Hall, 12 Cal.App.2d 489, 55 P.2d 1246; Groat v. Walkup Drayage, etc., Co., 14 Cal.App.2d 350, 58 P.2d 200; D'Avanzo v. Manno, 16 Cal.App.2d 346, 60 P.2d 524; Fraser v. Stellinger, 52 Cal.App.2d 564, 126 P.2d 653; Gunter v. Claggett, 65 Cal.App.2d 636, 151 P.2d 271; Noble v. Cavalier Restaurant, 106 Cal.App.2d 518, 235 P.2d 396; Huyck v. Merritt, 108 Cal.App.2d 775, 240 P.2d 1.

We think the only serious ground of complaint appears when the instruction is given and there is no evidence of any independent cause that could have been the sole proximate cause of the accident. A jury casting about for some reason for the instruction would necessarily become confused. In our opinion it would be clear error to give the instruction when there was no supporting evidence. Whether giving it would be seriously prejudicial would, of course, depend upon the facts of the particular case.

One cannot read the cases we have cited without being impressed with the fact that the courts in several instances have been reluctant to excuse the giving of the instruction where there was no supporting evidence. In Bender v. Schneider, 149 Cal.App.2d 195, 308 P.2d 527, 530, the court stated ‘This Court is opposed to the giving of an instruction on unavoidable accident when the accident could not have happened except for the negligence of either party or both. See McMillen v. Southern Pac. Co., 146 Cal.App.2d 216, 303 P.2d 788, where this court felt bound to follow the majority opinion in Parker v. Womack, supra. * * * Where the trial court does give the instruction, however, the majority and not the dissenting opinion in Parker v. Womack, supra, is controlling on us.’ We agree with the statement of the court in Jaeger v. Chapman, 95 Cal.App.2d 520, 523, 213 P.2d 404, 406, in holding that it was not error to refuse the instruction, ‘While it would not have been error to have given such an instruction, it was not error to refuse to give it where all elements of defendant's liability were covered by other instructions. The defendant is not entitled to have his defense over-emphasized and cannot complain that his defense is not stated in a particular way, as long as the defense is adequately and fairly covered.’ It was held not to be error to give the instruction in Shiya v. Reviea, 122 Cal.App.2d 155, 264 P.2d 190, 197. The court excused the giving of the instruction, saying ‘in the face of the majority opinion in the Parker case, we are unable to hold that it was prejudicial error to give such an instruction.’ In Carroll v. Beavers, 126 Cal.App.2d 828, 273 P.2d 56, complaint was made of the giving of the instruction because there was nothing in the evidence to indicate anything that happened which the drivers could not control. Referring to Parker the court said, 126 Cal.App.2d at page 839, 273 P.2d at page 63 ‘* * * but as we read that case it holds that even though the evidence is confined to matters which fail to show circumstances beyond the control of an ordinarily prudent person, yet an instruction on unavoidable accident is not error. On the authority of that case the contention here advanced cannot be sustained.’ In Astone v. Oldfield, 67 Cal.App.2d 702, 155 P.2d 398, the court held the instruction should not have been given when there was no evidence to justify it but that the error was not sufficiently prejudicial to require a reversal of the judgment. While the sufficiency of the evidence of an independent cause of the accident was questioned in Freedman v. Willeford, 121 Cal.App.2d 145, 148, 262 P.2d 624, the giving of the instruction was held not prejudicial error on authority of Parker v. Womack and Astone v. Oldfield.

In our opinion the rule of unavoidability was correctly applied in Scandalis v. Jenny, 132 Cal.App. 307, 22 P.2d 545 and Hyman v. Market Street Ry. Co., 41 Cal.App.2d 647, 107 P.2d 485, 486. In each case the court recognized that the rule does not apply unless the evidence would justify a finding that a cause existed, apart from the acts of the parties, which was the sole proximate cause of the accident. Judgment for defendants were reversed for error in giving instructions on unavoidable accident. In Scandalis the defendant's car struck a child who was playing in the street. Defendant saw the child ahead of him, looking down; he did not slow down his car or alter his course; the boy suddenly turned and ran into the car. The court stated that the case would have been entirely different if the child had been concealed and had suddenly appeared, but that defendant could not deny that he had been negligent in taking no precautions to avoid an accident. It was held that the instruction was misleading and prejudicial. It was a case in which the child's action was a proximate cause of the accident but clearly not the sole proximate cause. The rule of unavoidability does not apply in such cases. Hyman was a case in which two streetcars came together. Each defendant offered evidence that its car was at a standstill. The court stated ‘Obviously, the motorman of at least one of the two streetcars was negligent. There was no evidence that the collision occurred as the result of unavoidable accident. Both cars obviously were not at a standstill when the accident occurred. * * * The instruction, under the facts, was clearly misleading to the jury, and the giving of it was error prejudicial to appellant.’

It was conceded in Parker that these decisions were correct, but only for the reason that in each case the defendant's negligence appeared as a matter of law. It is immaterial whether this was the fact. That is not the question. Of course, where the negligence of a party is established as a proximate cause as a matter of law, no other cause can be the sole proximate cause. But unless there is evidence from which the jury could reasonably conclude that there was a cause not foreseeable and controllable by either party in the exercise of due care it is error to give the instruction. Even if there is such evidence there is no need for the instruction. In any case it would be a mere duplication of instructions on negligence and would tend to confuse and mislead the jury. The instructions should be confined to the principles of negligence and proximate cause without the use of the words ‘unavoidable or inevitable accident.’ They not only imply some theory of nonliability aside from questions of negligence, but carry a suggestion of a type of occurrences that are fatalistic and which have to be endured.

The purpose of our extended discussion is to call attention to the desirability of a reconsideration by the Supreme Court of the majority holding in Parker v. Womack. It has been the cause of the injection into negligence cases of a chimerical theory of nonresponsibility and has created unnecessary problems for the trial and the reviewing courts. The underlying principle of unavoidability is a simple one, namely, whether the evidence establishes a proximate cause of an accident, not reasonably foreseeable by the parties, or, in other words, one which could be found to have been the sole proximate cause of the accident. When that is stated, there is nothing more to be said. All the cases hold that instructions on unavoidability or inevitability are superfluous when adequate instructions on negligence are given. Jurors do not know this. We think that in the interest of simplicity and clarity the courts should discontinue the use of instructions on ‘unavoidability’ and ‘inevitability’, which do not serve to enlighten juries but only tend to confuse them. Especially confusing is the word ‘inevitable,’ as applied to accidents. We would be surprised if it did not suggest to the average juror, in a case like this one, that it means something that is bound to happen, in any event, to anyone who ventures upon the highway.

It was prejudicial error to give the cab company the benefit of the instruction on unavoidable accident. The only evidence to which it could have applied was the testimony of Bland that his motor stalled as he was crossing the middle line. The instruction inevitably centered the minds of the jurors upon that testimony. It could not have applied to Bland's attempt to turn in the middle of the block, or to his failure to observe the approach of Wurm's car, or to driving a cab, the motor of which he knew might possibly stall. The theory of the cab company was that Bland was not responsible for the stalling of the motor nor for his inability to start it and, therefore, the accident was unavoidable. It is argued on the appeal that the jurors no doubt believed the stalling of the motor to have been a fact, and that it was the sole proximate cause of the accident. This is the company's defense.

It was negligence as a matter of law for Bland to turn around in the street except at an intersection, in the absence of circumstances which would render such action excusable, justifiable and reasonably prudent, Veh.Code § 541. There was no evidence of any such circumstances. It was negligence for him to turn into the other lane of traffic unless it could be done with reasonable safety, Veh.Code § 544. The questioned instruction was improper for these reasons alone. No other cause could have been the sole proximate cause. But we do not place our holding of error upon the narrow basis of violation of law. There were other aspects of the failure to exercise a high degree of care which precluded the jury from finding that the stalling of the motor was the sole proximate cause of the accident. Bland testified that he did not see the Wurm car until it was within two or three car lengths of him, and then only because his passenger screamed. The time was between 8 and 9 o'clock in the morning; there was no car or other obstruction between Bland and the approaching Wurm car. We do not see how the jury, in the exercise of reasonable judgment, could have believed that Bland exercised a high degree of care in looking for approaching traffic before encroaching upon the left-hand side of the road. Also, Wurm testified that when the cab entered his path there was insufficient time for him to stop or turn aside. The jury evidently of insurer's compliance with usual practice would not have been found free from fault. Moreover, there was evidence from which it could have been inferred that the motor of the cab was not functioning properly. It had been stalling the day before, had been in the shop, and Bland explained that the reason it stalled was that it was being operated on a thin mixture in order to save gas. If that was the fact it might have been considered a circumstance which Bland could not have avoided, but could scarcely have been deemed unavoidable as to the cab company. We do not say that the stalling of an automobile motor might not in some circumstances be legally unavoidable by the operator of the car. It might occur without any negligence upon his part, and he could be held blameless if his conduct in all other respects was free from negligence. But on no conceivable theory could Bland's freedom from responsibility for the stalling of the motor have been an excuse for using the car with a motor in the described condition or for Bland's turning in the middle of the block and into an opposite lane, and a perilous position, or for his failure to observe and keep out of the way of the Wurm car.

We do not believe plaintiff would have lost her case if the court had not given the instruction on unavoidable or inevitable accident.

We find no error that would warrant interference with the judgment in favor of Wurm. Other points discussed in the briefs need not be mentioned.

The judgment is affirmed as to Wurm and reversed as to Yellow Cab Company of California; costs to Wurm and costs to appellant against Yellow Cab Company; the attempted appeal from the order denying motion for new trial is dismissed.

FOOTNOTES

1.  ‘In law we recognize what is termed an unavoidable or inevitable accident. These terms do not mean literally that it was not possible for such an accident to be avoided. They simply denote an accident that occurred without having been proximately caused by negligence. Even if such an accident could have been avoided by the exercise of exceptional foresight, skill or caution, still, no one may be held liable for injuries resulting from it. ‘Bear in mind, however, that if any defendant failed to exercise ordinary care, and if that failure was a proximate cause of the accident in question, then, whether or not such conduct was the sole cause, the accident was not unavoidable, and the defense of unavoidability may not be maintained by that defendant.’

SHINN, Presiding Justice.

PARKER WOOD and VALLEÉ, JJ., concur.

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