MAPES v. YOWELL

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

Frank E. MAPES, by and through Gordon B. Mapes, his Guardian ad litem, and Gordon B. Mapes, individually, Plaintiffs and Appellants, v. Bethel E. YOWELL, Defendant and Respondent.*

Civ. 23661.

Decided: December 15, 1959

Moore & Moore, Bender Moore, Los Angeles, for appellants. Spray, Gould & Bowers, Los Angeles, for respondent.

In this action for damages arising out of a collision of automobiles, the verdict and judgment were for the defendant and the plaintiffs appeal.

Frank E. Mapes, hereinafter referred to as plaintiff, sued for his personal injuries; Gordon B. Mapes, father of Frank, sued for medical expenses incurred by Frank.

The collision occurred in the intersection of Wyngate Street and Scoville Avenue in Sunland in Los Angeles County. Plaintiff, then 17 years of age, was riding in a jeep driven by Dennis A. Sheehan. The boys, who were members of the National Guard, had picked up two recruits and they were returning to the National Guard Armory. They were traveling easterly on Wyngate when their jeep was struck by a Chrysler automobile driven by defendant Yowell which was traveling northerly on Scoville Avenue. There were no curbs or sidewalks on either street. Wyngate is 18 feet wide west of Scoville; on the east it is 12 feet wide. Scoville was 16 feet wide. The point of impact of the two vehicles was 3 feet north of the south line of Wyngate and 5 feet west of the east line of Scoville. The Chrysler struck the right front portion of the jeep. Plaintiff was thrown out and was seriously injured. The collision occurred about 7:25 p.m.; it was dark and had been raining. Evidence was introduced by plaintiff that a light ran was falling and that the windshield wipers of the jeep were in operation. The windshield wipers on the Chrysler were not in operation. There was a street light at the southwest corner of the intersection. A police officer who appeared on the scene some 15 minutes after the accident occurred testified that Sheehan stated that he was traveling 20 or 25 miles an hour. Defendant Yowell testified that as he approached the intersection he was traveling 20 or 25 miles an hour; when he was within 8 or 10 feet of the point of the collision he saw the lights of the jeep but did not see the jeep itself until the cars came together. He applied his brakes and might have slowed down some. He also testified that Sheehan stated to him that he, Sheehan, did not see the Chrysler. It was stipulated that it was a blind intersection.

The points on appeal are insufficiency of the evidence to justify the verdict and error in refusing two of plaintiff's requested instructions.

The first point is not properly before us. Appellant's brief does not purport to make an adequate statement of the evidence and, therefore, is not entitled to consideration. In re Estate of Good, 146 Cal. App.2d 704, 304 P.2d 196.

Plaintiff requested an instruction which is set out in the margin.1 It was refused by the court. Defendant maintains that it was properlyrefused, stating: ‘But plaintiff fails to point out in what manner he was prejudiced by the court's failure to give this instruction and we can find no such prejudice. It is clear from the evidence that both defendant and the jeep were exceeding the prima facie speed limit, therefore the instruction, if given would have applied equally to both. There is no reason to believe the jury would have decided differently if it had been informed of the prima facie speed limit.’ It is then pointed out that the court instructed on the basic speed law (Vehicle Code § 510). It also instructed on the general duty of drivers to use ordinary care, to keep a lookout for traffic and other conditions to be reasonably anticipated. Defendant says further: ‘In view of these factors, how can it be said that if the jury had been instructed both drivers violated the prima facie speed limit, its verdict would have been in favor of plaintiff?‘ It is clear to us that the refusal of the instruction was prejudical error. In a discussion of the instructions to be given, the following took place:

‘The Court: The jury under the evidence would be required to find that it is a blind intersection, and I do not believe there is any substantial disagreement—I may be in error on that——

‘Mr. Moore: It was stipulated in the pre-trial, your Honor.

The Court:—that 15 miles an hour would be a proper limit of speed for vehicles entering the intersection. That is——

‘Mr. Egan: Prima facie, as they call it.

‘The Court: Yes; but I do not see that it is necessary or proper to give them that instruction with respect to that matter, since anything in excess of 15 miles an hour would be——

‘Mr. Moore: It would be incumbent upon the defendant to justify it.

‘The Court:—prima facie evidence of negligence, and no justification, of course, has been offered.’

Defendants had pleaded that plaintiff and Sheehan were engaged in a joint venture and that the accident was caused by the negligence of Sheehan. It appears both from the statement of the court, and from defendant's contention that the instruction was unnecessary because both vehicles entered the intersection in excess of 15 miles an hour, that it was overlooked at the time that the negligence of Sheehan would not be imputable to plaintiff unless they were engaged in a joint venture. The court subsequently ruled that there was no evidence of the existence of a joint venture and refused to give any instructions on that subject. However, after eliminating that issue from the case the court did not realize the necessity for giving plaintiff's instruction with respect to the speed of 15 miles an hour at blind intersections.

The jurors could only have known what the prima facie speed limit was and the significance to be attached to it by means of an instruction. The fact that there was evidence that both vehicles were traveling in excess of 15 miles per hour furnished no reason for refusing the instruction. It is not questioned that the instruction was a correct statement of the law or that it is proper to instruct as to the basic speed limits. ‘It is proper under section 513 of the Vehicle Code to give an instruction on the prima facie speed limit even though proof of speed in excess of that limit is not enough, standing alone, to show that the vehicle was being operated negligently.’ Hardin v. San Jose City Lines, Inc., 41 Cal.2d 432, 260 P.2d 63, 67.

It is clear that the jury could have found that Yowell entered the intersection in excess of 15 miles per hour. We believe that it is probable that the jury would have found him to have been guilty of negligence if the instruction had been given. It will appear from what we have said respecting the manner in which he approached the intersection that irrespective of his speed the jury could have found that he was not exercising the care which the conditions demanded. The error necessitates a reversal of the judgment.

The court refused another of plaintiff's instructions reading as set out in the margin.2 If plaintiff had submitted a proper instruction that the negligence, if any, of Sheehan was not to be imputed to plaintiff it should have been given. Defendant throughout the trial endeavored to elicit evidence to support his pleaded defense that plaintiff and Sheehan were engaged in a joint venture and at one time stated before the jury that Sheehan's admissions were admissible as against Mapes as the statements of a joint adventurer. It is asserted in appellant's brief and not denied that this claim was made by defense counsel in his opening statement to the jury. No instruction was given that the negligence of Sheehan, if any, was not imputable to plaintiff. However, the hand-me-down form which plaintiff's counsel lifted from a form book was incomplete and inapplicable to the case. The form is intended for use in cases in which the driver of the car and others are the plaintiffs but not until the blanks have been filled in and the instruction completed in proper form. Although we have held that an instruction should not be refused because a blank space in it results in a slight imperfection which could be corrected ‘with the stroke of a pen’ (Laird v. Moss. 173 Cal.App.2d 48, 342 P.2d 463, 467), we deprecate the imposition upon the court of the task of making extensive alterations in instructions submitted in improper form. The availability of a form book of instructions does not relieve attorneys of their manifest duty to see that the instruction forms which they submit are appropriate and are completed so as to fit the issues in the case. Accordingly, we hold that it was not error to refuse this instruction.

The judgment is reversed; the purported appeal from the order denying motion for new trial is dismissed.

FOOTNOTES

1.  ‘The law of this state does not prescribe an absolute speed limit, in terms of so many miles an hour, that was applicable at the time and place of the accident involved in this case. The law does ordain what it calls ‘prima facie speed limits'; and the law says that if the speed of a vehicle upon a highway is not in excess of the prima facie limit, such speed is lawful unless clearly proved to be in violation of what is known as the basic speed law; and if the speed of a vehicle upon a highway is in excess of the applicable prima facie limit, such speed is unlawful unless proved to be not in violation of the basic speed law. ‘However, our law further provides that proof of speed in excess of any prima facie limit shall not establish negligence as a matter of law, but that anyone who claims that a speed in excess of such limit was negligent must, to support such a claim, prove as a fact that such speed was negligent in the circumstances involved. ‘The basic speed law to which I have referred provides as follows: ‘No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property.’ ‘The prima facie speed limit that was in effect at the time and place of the accident involved in this case was fifteen miles per hour.’

2.  ‘You are reminded of the fact that the vehicle in which plaintiff(s) .......... (was) (were) riding at the time of the accident in question was then being operated by (the plaintiff) .......... You are instructed that the driver's negligence, if any, may not be imputed to the (other) plaintiff and that, therefore, you shall find that the plaintiff .......... was not guilty of contributory negligence (unless you should find that there was personal negligence on (his) (her) part, that is, some negligent conduct of (his) (her) own, which contributed as a proximate cause to (his) (her) injury).

SHINN, Presiding Justice.

FORD, J., concurs. VALLEE, J., concurs in the judgment.

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