POWLEY v. Harold R. Appleby, Jr., and Harold R. Appleby, Sr., Respondents.*

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

Wallace O. POWLEY, Ernestine Powley and Dennis Garrison, a Minor, by his Guardian ad litem, Ernestine Powley, Plaintiffs and Appellants, v. Harold R. APPLEBY, Jr., Harold R. Appleby, Sr., State Farm Mutual Automobile Insurance Company, a Corporation, et al., Defendants, Harold R. Appleby, Jr., and Harold R. Appleby, Sr., Respondents.*

Civ. 22201.

Decided: August 27, 1957

Carter, Young, Zetterberg & Henrie, Pomona, for appellants. Spray, Gould & Bowers, Los Angeles, for respondents.

This is an action for damages for personal injuries sustained by the minor plaintiff, Dennis Garrison, when he was struck by an automobile while riding his bicycle. Prior to trial, dismissal was granted as to defendant State Farm Mutual Automobile Insurance Company. Plaintiffs have appealed from the judgment on a verdict in favor of defendants, and have purportedly appealed from the order denying their motion for a new trial.

At the time of the accident, Dennis Garrison was ten years of age. He lived on White Avenue, which runs north and south, in the city of Pomona. About noon on the day of the accident he mounted his bicycle to ride around the block before lunch. He intended to ride south half a block to Williams Street; then east on Williams one block to its end at Illinois Street; to turn north for one block on Illinois Street to Laurel Street and west on Laurel one block back to White Avenue and home. In the intersection of Williams and Illinois streets he was struck by an automobile driven by defendant Harold R. Appleby, Jr. There were no disinterested eyewitnesses to the collision.

Williams and Illinois streets are each 40 feet wide, from curb to curb, and each is paved. The area is residential. The view of oncoming traffic for both parties approaching the intersection was at least partially blocked. The weather was clear and bright.

The testimony of the defendant automobile driver is substantially as follows: He left his aunt's house on Laurel Street, about a block and a half from the scene of the accident, drove east on Laurel, turned right onto Illinois and proceeded south on that street to the point of collision. He was in high gear on Illinois Street, and he accelerated a little after he turned the corner from Laurel. As he entered the intersection of Illinois and Williams Streets, he was travelling between 20 and 25 miles per hour. In the intersection of Illinois and Williams Streets he struck Dennis. He did not recall looking to right or left as he drove south on Illinois Street, approaching the intersection. Just prior to the collision he heard Dennis scream, and the scream may have been what called his attention to the boy. He caught a glimpse of Dennis out of the corner of his eye before his car struck Dennis. He took his foot off the accelerator and put it on the brakes and applied the brakes just at the moment of impact. The brakes felt as if they were holding when the collision occurred. His car struck Dennis ‘right dead center’ and he saw the boy fly in the air straight ahead of the car. The car skidded straight ahead to a stop with its front approximately in line with the south extension of the curb line of Williams Street, with Dennis approximately ten feet straight in front of the middle of the car. The bicycle was dragged under the front of the car. He saw Dennis coming from a westerly direction before his car struck the child, but he couldn't say how fast Dennis was going.

Dennis Garrison testified that he did not remember riding down Williams Street but he remembered ‘a little bit’ when he was on Illinois Street; he did not remember entering the intersection and did not remember whether he looked either way when he came into the intersection; he recalled that he was just barely moving and he saw the grille, headlights and hood of the car but he did not see the driver; that the next thing he remembered was a blearly object; he did not remember where the car was and didn't know whether it was moving or not; that he remembered nothing else about the collision.

No other witnesses testified concerning the collision or the events immediately prior thereto. A police officer, Mr. Root, arrived at the scene after the collision, took pictures, made observations and stepped off measurements. Officer Root was called as a witness for plaintiffs and on direct examination testified that 27 feet of four wheel skid marks were left by the automobile at the time of the collision; that running midway between the skid marks was a gouge mark which ‘[f]rom an examination of the bicycle and from the line there, I determined that is the scrape mark made by the bicycle pedal, the left bicycle pedal, or that arm, the end of the arm there which the bicycle pedal attaches to.’ The officer further testified that the gouge marks started at a point ten feet south of the north curb line of Williams Street and fifteen feet east of the west curb line of Illinois Street. On cross-examination the officer testified that he was unable to fix the definite point of impact but from his observation of the physical evidence he concluded that the point of impact would not have been further south than where the gouge marks started, and it was possible for it to have been further north. From the skid marks he fixed the speed of the automobile at 24 miles per hour.

Officer Root was also called as a witness for defendants and testified that he interviewed Dennis in the hospital as the boy was being admitted after the collision and that Dennis ‘stated to me that he was taking one more ride around the block before putting his bicycle up, and he thought he would go real fast. He stated that usually he stopped at Illinois when going east on Williams, but he said that he thought since the street usually wasn't busy he wouldn't this time, and therefore cut the corner fast, and, to quote his expression, ‘Boom!”.

The defendant driver of the automobile, at the trial, fixed the point of impact as being approximately 12 feet north of the north curb line of Williams Street and 10 feet east of the west curb line of Illinois Street. On cross-examination the witness admitted that in his deposition he had testified that the point of impact was ten feet north of an imaginary line in the center of Williams Street and five feet west of an imaginary line in the center of Illinois Street but that this was based upon his conversation with the police.

Photographs of the scene of the accident were introduced into evidence in which the skid marks and the gouge mark are clearly shown.

Appellants contend the trial court committed prejudicial error in (1) refusing to give an instruction that the minor plaintiff was presumed to have been exercising due care in operating his bicycle at the time of the collision; (2) refusing to allow opinion evidence as to the speed of the bicycle at the time of the collision and (3) failing to allow certain expert testimony.

Plaintiffs requested the following instruction (B.A.J.I. 135–A), which the trial court refused: ‘The law presumes that (Dennis Garrison) one of the plaintiffs in this action, in his conduct at the time of and immediately preceding the accident here in question was exercising ordinary care and was obeying the law. These presumptions are a form of prima facie evidence and will support findings in accordance therewith in the absence of evidence to the contrary. When there is other evidence that conflicts with such a presumption, it is the jury's duty to weigh that evidence against the presumption, to determine which, if either, preponderates. Such deliberations, of course, should be related to and be in accordance with my instructions on the burden of proof.’

In lieu of the foregoing instruction, the trial court instructed the jury as follows (B.A.J.I. 135): ‘At the outset of this trial, each party was entitled to the presumptions of law that every person takes ordinary care of his own concerns and that he obeys the law. These presumptions are a form of prima facie evidence and will support findings in accordance therewith, in the absence of evidence to the contrary. When there is other evidence that conflicts with such a presumption, it is the jury's duty to weight that evidence against the presumption (and any evidence that may support the presumption), to determine which, if either, preponderates. Such deliberations, of course, shall be related to, and in accordance with, my instructions on the burden of proof.’

Plaintiffs assert that the plaintiff Dennis Garrison, having suffered severe head injuries in the accident which caused a complete loss of memory, was entitled to the specific instruction of due care; that since defendant Harold R. Appleby, Jr. testified as to his own conduct prior to and at the time of the accident, he was not entitled to the benefit of the presumption and therefore the substitute instruction given by the court which extended the presumption to him compounded the error made in refusing plaintiffs' instruction.

Plaintiffs are correct in their contention that the defendant automobile driver, having testified fully as to his conduct at and prior to the time of the collision, should not have been accorded the benefit of the presumption and the instruction was, therefore, erroneous. Speck v. Sarver, 20 Cal.2d 585, 587–588, 128 P.2d 16; Stout v. Southern Pacific R. Co., 127 Cal.App.2d 491, 496, 274 P.2d 194; Verhaegen v. Guy F. Atkinson Co., 126 Cal.App.2d 442, 445, 272 P.2d 855; Ford v. Chesley Transportation Co., 101 Cal.App.2d 548, 552, 225 P.2d 997.

The rule applicable to the giving of an instruction on the presumption of due care where there is in issue the negligence of a decedent, or of one who by reason of loss of memory cannot testify as to his conduct, is succinctly stated in Scott v. Burke, 39 Cal.2d 388, 394, 247 P.2d 313, 316, as follows: ‘It is settled law that where alleged negligent acts and conduct of a decedent are at issue before the court and the ‘testimony respecting such acts and conduct necessarily must be produced by witnesses other than the deceased, * * * an instruction that the deceased is presumed to have exercised ordinary care for his own concerns is * * * proper’ except that if the fact proved by uncontradicted testimony produced by the party seeking to invoke the presumption, ‘under circumstances which afford no indication that the testimony is the product of mistake or inadvertence * * * is wholly irreconcilable with the presumption * * * the latter is dispelled and disappears from the case.’ (Westberg v. Willde, 1939, 14 Cal.2d 360, 365, 367, 94 P.2d 590; see, also, Mar Shee v. Maryland Assurance Corp., 1922, 190 Cal. 1, 9, 210 P. 269; Smellie v. Southern Pac. Co., 1931, 212 Cal. 540, 560–561, 299 P. 529; Rogers v. Interstate Transit Co., 1931, 212 Cal. 36, 39, 297 P. 884; Mundy v. Marshall, 1937, 8 Cal.2d 294, 296, 65 P.2d 65.) One who by reason of loss of memory is unable to testify concerning his conduct at and immediately before the time of the accident is entitled to invoke the same presumption, subject to the same exception (citing cases). This disputable presumption is by statute declared to be evidence (Code Civ.Proc., § 1957; see, also, §§ 1961, 1963(1)(4)), and is sufficient to support a verdict of a jury unless dispelled by the ‘irreconcilable’ fact proved by the party relying on it. (Westberg v. Willde, 1939, supra, 14 Cal.2d 360, 365, 94 P.2d 590 and cases there cited; Chakmakjian v. Lowe, 1949, 33 Cal.2d 308, 313, 201 P.2d 801.) * * *.'

Plaintiffs called as their witness officer Root. The officer's testimony, together with the photographic evidence introduced by plaintiffs showing the skid marks and gouge mark, clearly placed plaintiff Dennis Garrison in the northwest quadrant of the intersection at the time of the collision. This uncontradicted evidence, produced by plaintiffs, established that Dennis was on the wrong side of the street at the time he was struck, a fact which was wholly irreconcilable with the presumption of due care upon which plaintiffs sought to rely. They were not, therefore, entitled to an instruction giving them the benefit of such presumption.

The question remains, then, since neither party should have been given the benefit of the presumption, did the trial court commit reversible error in instructing the jury that both parties were presumed to have exercised ordinary care? We think not. Whether there was prejudicial error in giving the instruction depends upon the facts of the particular case. Speck v. Sarver, supra, 20 Cal.2d 585, 588, 128 P.2d 16; Stout v. Southern Pacific R. Co., supra, 127 Cal.App.2d 491, 497, 274 P.2d 194; Verhaegen v. Guy F. Atkinson Co., supra, 126 Cal.App.2d 442, 444, 272 P.2d 855; Ford v. Chesley Transportation Co., supra, 101 Cal.App.2d 548, 552, 225 P.2d 997. Also as stated in Rozzen v. Blumenfeld, 117 Cal.App.2d 285, 288, 255 P.2d 850, 852, in determining whether prejudice resulted in a particular case, it should be kept in mind that the ‘party against whom the presumption is invoked must not only overcome by a preponderance of the evidence the case presented by the opposing party, but must also overcome the presumption, * * *.’ In the instant case, there is little, if any, conflict in the evidence on the issue of the defendant driver's negligence. Plaintiffs' witness, officer Root, testified that from the skid marks he estimated the driver's speed at 24 miles an hour. The skid marks as shown on the photographs, introduced into evidence by plaintiffs, indicate that the automobile was on the right side of the road. Plaintiffs' evidence is corroborated by the testimony of the defendant driver. There was evidence that the view at the intersection was at least partially obstructed. The jury was, however, fully instructed pursuant to Vehicle Code, section 511, with respect to the prima facie speed limits on approaching intersections where the driver does not have a clear and unobstructed view. They were also fully instructed as to the statutes relating to right of way in an intersection.

Considering the evidence and the instructions as a whole, we do not believe defendants gained any unfair advantage from the instruction giving both parties the benefit of the presumption of due care, or that plaintiffs were prejudiced thereby. On the contrary, the advantage, if any, was in favor of plaintiffs since, as hereinabove pointed out, the uncontradicted evidence adduced by plaintiffs was irreconcilable with the presumption of due care on the part of Dennis Garrison. There is ample evidence in the record to sustain a verdict based on either an implied finding that there was no negligence on the part of the defendant automobile driver, or that plaintiff Dennis Garrison was contributorily negligent. We do not believe, therefore, that the jury was influenced in reaching their verdict by the erroneous instruction.

Plaintiffs sought by an expert witness to establish the relative speeds of the automobile and the boy on the bicycle at the moment of impact. Upon objection to a hypothetical question asked of the witness, plaintiffs' counsel made an offer of proof ‘that given a car traveling from north to south and a boy on a bicycle traveling from west to east, whether that is from northwest, southwest, or due west, or any place in between, where the boy is struck dead center by the car and flies through the air ahead of the car, straight in line with the car, that our witness, Dr. Morelli, with those facts, can tell the relative speed of the boy on the bicycle in an easterly direction at right-angles to the car’ and that it ‘would show that the speed of the bicycle and the boy at the time was approximately zero and in an easterly direction.’ Defendants' objection upon the grounds that the question assumed facts not in evidence, and that the answer would be purely speculative and conjectural, was sustained. This ruling plaintiffs contend was error. The only evidence in the record upon which the question could have been based was the testimony of the defendant automobile driver, who had testified that he entered the intersection at between 20 to 25 miles per hour; that the front part of his car struck a boy on a bicycle; that it looked to him as if he hit him dead center; that at the moment of impact he had his brakes on, and that the boy flew through the air and hit the pavement about ten feet in front of the car. We agree with the ruling of the trial court that the testimony was not sufficiently definite to support the hypothertical question.

Plaintiffs endeavored to prove by another expert witness, Mr. Conger, the exact location of certain shadows cast by an overhead light, appearing in the photographs, for the purpose of establishing the exact location of where the skid marks shown in the photographs started. The trial court sustained defendants' objection to the proffered testimony upon the ground that it called for a deduction from too many variable factors that would make the result border on speculation and there was no foundation laid. The trial court's ruling was correct. The chart which the witness had prepared was based on the position of the sun at 12:20 p. m. on the day of the accident. This was the approximate time the accident occurred. However, there is no evidence in the record as to the time of the day the photographs were taken other than that were taken some time after the accident on the same day.

The judgment is affirmed. The order denying the motion for new trial being nonappealable, the purported appeal therefrom is dismissed.

FOURT, Justice.

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