CHRISTENSEN v. BOCIAN

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

Darlene Ruth CHRISTENSEN, a minor, by Ruth Christensen, her guardian ad litem, Plaintiff and Appellant, v. Eugene Francis BOCIAN, Defendant and Respondent.

Civ. 23281.*

Decided: February 16, 1959

Robert H. Lund, Fred M. Nelson, Long Beach, for appellant. Ball, Hunt & Hart, Long Beach, for respondent.

Plaintiff appeals from a judgment based upon an adverse jury verdict in a personal injury action. Her attorneys rely upon the single contention that the court prejudicially erred in giving instructions to the jury upon the subject of contributory negligence.

Plaintiff was injured in a collision of automobiles which took place on November 25, 1956, within the intersection of Elm and Burnett Streets, in the city of Long Beach. Plaintiff, 15 years of age, was riding as a guest in the front seat of a Mercury automobile owned and driven by Donald Seaborn, traveling southerly on Elm Street. She was in the middle, her brother Steve being to the right. The three were on their way to a skating rink where they intended to practice for a competition. Defendant Bocian was driving east on Burnett Street. The intersection was within a residential district and was not controlled by stop signs or in any other manner. The view of each driver was obstructed to the extent that the 15-mile prima facie speed limit was applicable, under Vehicle Code § 511(a)(3), as the statute then stood. Each driver was traveling in excess of 15 miles an hour and saw the other car before the impact, but neither was able to stop in time to avoid a collision. The Bocian car ran into the side of Seaborn's. The facts in their entirety are such that either or both of the drivers could have been found negligent. It does not appear whether the verdict for defendant rested upon a finding of absence of negligence on his part or upon contributory negligence of plaintiff.

She had ridden with Seaborn some five to seven previous times, but there is no evidence that she had any occasion to mistrust his driving or that she did so. She herself had never driven an automobile and was paying no attention to his driving while they traveled along. As they entered the intersection she saw Bocian's car for the first time and realized it would hit the one in which she was riding, whereupon she screamed and told Seaborn the other car was going to hit them. She received injuries which were substantial but not very serious.

Appellant's counsel argues, somewhat persuasively, that there was no evidence of negligence on her part and that instructions on contributory negligence were therefore inappropriate and prejudicial. The language of Murphy v. National Ice Cream Co., 114 Cal.App. 482, 489, 300 P. 91, 94, is apposite: ‘Mrs. Murphy as a guest was not charged with the responsibility for observing the condition of the traffic upon the highway, nor was there anything she could have done after the danger was imminent to avoid a collision. Martinelli v. Poley, 210 Cal. 450, 292 P. 451, 454; Marchetti v. Southern Pac. Co., 204 Cal. 679, 269 P. 529, 531. The former case presented a somewhat similar situation, and in holding that the guest was not guilty of contributory negligence the court said: ‘We find nothing in the evidence, either that admitted on behalf of the plaintiff, or that introduced by the defendants, that would tend to show that plaintiff was guilty of contributory negligence. He was simply riding with the appellant as a guest of the latter, and had no power of control over the machine in which they were traveling. Nothing had happened during the trip, so far as the evidence shows, at least until the collision occurred, which indicated in any manner that the appellant was not driving his machine in a perfectly proper and careful manner. There was no reason for the plaintiff, therefore, to be apprehensive of his safety while riding with appellant, or to take any unusual precautions against their running into danger. Just before the accident happened, he was observing the houses along the highway, and was not looking in front of the machine, and therefore did not see Barlow's truck until it was about 5 feet from the car in which he was riding. It was then too late for him to caution appellant regarding the latter's driving, or to do anything else to avoid the collision. There is nothing in this conduct of the plaintiff which would tend in the least to prove that he was guilty of contributory negligence in causing the injury sustained by him as a result of the collision.’ In the latter case, in holding that the responsibility for observing danger does not rest upon the guest, the doctrine is stated substantially the same. There the court apparently goes further in saying that, even when the danger of collision becomes suddenly imminent, the guest is not obliged to ‘displace the driver, seize the operating levers, and endeavor to avoid the impending catastrophe’.' Crawford v. Rose, 2 Cal.App.2d 734, 738, 39 P.2d 217, 218: ‘It is not the law that under all possible circumstances one who is riding as a guest in such a vehicle must watch the road and the driver, and hold himself in readiness to give directions to the driver concerning the dangers of the road.’

These are well-settled principles (see, 7 Cal.Jur.2d § 340, p. 239) and the divergence between the cases cited by the respective parties grows out of their application to varying factual situations rather than any uncertainty as to the state of the law; hence, further discussion of them would be without profit.

Were we to sustain appellant's contention that the evidence was insufficient to warrant submission of the issue of contributory negligence to the jury, we nevertheless would be precluded by the exact state of the record from reversing the case. Appellant complains of invited error. The case was argued to the jury but the arguments were not transcribed. The record does not affirmatively show any actual notice to the trial judge that plaintiff's counsel considered the evidence insufficient to justify submission of the issue of contributory negligence to the jury.

Counsel specifically mention BAJI instructions numbered 103.1, 113, 116A, 133 and 222B, all of which were requested by defendant and given as modified. Each of them tenders the issue of contributory negligence. But plaintiff also requested instructions involving that issue; they are set forth in the margin1 and were given by the court.

Hazelett v. Miller, 115 Cal.App.2d 801, 805, 252 P.2d 997, 999, is apposite: ‘Plaintiffs may not now be heard to complain about the giving of a general instruction offered by defendant in reference to contributory negligence of one or more of plaintiffs, under the evidence here produced, particularly where plaintiffs offered and the court gave plaintiffs' instruction offered by them on the same subject. Matsumoto v. Renner, 90 Cal.App.2d 406, 202 P.2d 1051; Lee v. Hackney, 110 Cal.App.2d 444, 242 P.2d 933.’ Zuckerman v. Underwriters at Lloyd's, 42 Cal.2d 460, 470, 267 P.2d 777, 783: ‘However, the beneficiaries are in no position to criticize the instruction presented by Underwriters because the jury was given a substantially similar instruction requested by them. It is well established that a party cannot complain of an error in an instruction given at the request of his adversary when one requested by him also contains the same error. Wells v. Lloyd, 21 Cal.2d 452, 460, 132 P.2d 471; Yolo Water & Power Co. v. Hudson, 182 Cal. 48, 51, 186 P. 772.’ To the same effect, see, Butigan v. Yellow Cab Co., 49 Cal.2d 652, 657, 320 P.2d 500; Jentick v. Pacific Gas & Elec. Co., 18 Cal.2d 117, 121, 114 P.2d 343; Yolo Water & Power Co. v. Hudson, 182 Cal. 48, 51, 186 P. 772; Hughes v. Pacific Electric Ry. Co., 58 Cal.App. 375, 380, 208 P. 335; Bender v. Perry, 37 Cal.App.2d 206, 212–213, 99 P.2d 319; George v. City of Los Angeles, 51 Cal.App.2d 311, 319, 124 P.2d 872; Knowles v. Roberts-at-The-Beach Co., 115 Cal.App.2d 196, 198, 251 P.2d 389; Smith v. City & County of San Francisco, 117 Cal.App.2d 749, 751, 256 P.2d 999; Rosenthal v. Harris Motor Co., 118 Cal.App.2d 403, 406, 257 P.2d 1034; Fuentes v. Panella, 120 Cal.App.2d 175, 182, 260 P.2d 853; Smith v. Kile, 147 Cal.App.2d 314, 317, 304 P.2d 1034; see also, 4 Cal.Jur.2d § 557, p. 423.

Application of these authorities to the situation disclosed by the record at bar requires affirmance.

Judgment affirmed.

FOOTNOTES

1.  ‘BAJI 101–I Requested by Plaintiff Given as Mod. ‘A plaintiff who (was not guilty of contributory negligence and who) was injured as a proximate result of some negligent conduct on the part of (the) defendant is entitled to recover from such defendant compensation for such injury.’ ‘BAJI 104–A Requested by Plaintiff Given ‘This does not mean that the law seeks and recognizes only one proximate cause of an injury, consisting of only one factor, one act, one element of circumstance, or the conduct of only one person. To the contrary, the acts and omissions of two or more persons may work concurrently as the efficient cause of an injury, and in such a case, each of the participating acts or omissions is regarded in law as a proximate cause. (To give rise to liability, however, or to constitute contributory negligence, any such proximate cause must have consisted of negligent conduct.)’ ‘BAJI 104–B Requested by Plaintiff Given ‘When the negligent acts or omissions of two or more persons, whether committed independently or in the course of jointly directed conduct, contribute concurrently and as proximate causes to the injury of another, each of such persons is liable (in the absence of contributory negligence). This is true regardless of the relative degree of the contribution. (It is no defense for one of such persons that some other person, not joined as a defendant in the action, participated in causing the injury) (even if it should appear to you that the negligence of that other person was greater in either its wrongful nature or its effect).’ ‘BAJI 147 Requested by Plaintiff Given as Modified Given and Modified ‘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. There is no precise age at which, as a matter of law, a child comes to be held accountable for (her) actions by the same standard as applies an adult. It is for you to determine the mental capacity and experience of, and whether (her) conduct was or was not such as might reasonably have been expected from a child of like age, capacity and experience, under the same or similar circumstances. * * *’

ASHBURN, Justice.

FOX, P. J., and HERNDON, J., concur.

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