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

David CUMMINGS, a minor, by and through his guardian ad litem, Robert B. Cummings, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES, Defendant and Respondent.*

Civ. 24015.

Decided: October 24, 1960

J. Paul Madsen, Whittier, for appellant. Ball, Hunt & Hart, Long Beach, for respondent.

Plaintiffs, father and minor son, appeal from a judgment in favor of defendant in an action for damages for personal injuries sustained by the son when he was struck by defendant's automobile. They contend that the giving of certain instructions and the refusal to give others constituted prejudicial error. The record fails to support their position with regard to any of the alleged errors.

The accident occurred at about 3:50 p.m., on May 24, 1956, on Norwalk Boulevard in Los Angeles County, in clear, dry weather. Norwalk Boulevard was about 20 feet in width and consisted of two traffic lanes running in a north-south direction. The shoulders were unimproved and the east shoulder sloped down to a ditch.

David, (the minor plaintiff, who was 7 years old at the time) was walking on the east shoulder with a group of boys. The group was proceeding north with their backs to the north-bound traffic. The defendant County's car, driven by Reynolds and occupied by Sherwood, was proceeding north on Norwalk Boulevard. For a distance of one-half mile to a mile south of the point of impact, Reynolds and Sherwood had followed behind a large covered truck and were traveling about 25 to 30 miles per hour. As the car approached David, Reynolds saw him from a distance of 100 feet to one block away. David was on the shoulder from 2 to 6 feet from the edge of the pavement, according to various witnesses and was either standing, walking, trotting or running. Reynolds testified that upon spotting the children, he released the pressure of his foot from the accelerator, but he did not sound his horn or immediately apply his brakes.

What next occurred is the subject of considerable conflict. Reynolds testified that when the car reached a point about 10 to 20 feet south of David, the boy whirled to his left and darted in front of the car without warning or looking toward the oncoming car; that he swerved the car and applied the brakes in an attempt to avoid the accident and that he passed over the center line either just before or just after hitting the boy. A police officer who investigated the accident testified that he found 24 feet of skid marks from two wheels (from either the right or left side of the car) about 1 foot from the shoulder and that the point of impact was about 8 feet from the northern termination of the marks. Since the boy was struck on the head by the right front headlight, he was either about 1 foot west of the shoulder on the paved traffic lane or about 4 feet east of the pavement and still on the shoulder at the time he was hit, depending upon whether the tire marks were made by the right or left wheels of the County car. On this latter question the evidence is directly conflicting, one expert testifying unequivocally that the skid marks were those of the left wheels (which would place the right wheels on the shoulder) and another expert testifying unequivocally to the opposite. There was testimony that Reynolds swerved the car over the center line and back onto the shoulder. In the process he forced a south-bound car partially off of the road to the west. Reynolds claimed that the swerve was in an attempt to avoid the accident. Some witnesses testified that he swerved over the center line well before the accident and then swung to the east and onto the shoulder. Two child witnesses testified that David was struck while still on the shoulder. Respondent's brief concedes that Reynolds did swerve over the center line.

The tire skid marks identified as those made by the County car, were laid down in a straight line and approximately equidistant from the edge of the pavement at each extreme. No skid marks from the other two wheels were found either on the pavement to the west or on the shoulder to the east.

Plaintiffs first complain of the trial court's ‘refusal’ of BAJI 201–E, requested by them. However, the record shows that this instruction was ‘deleted’ at the time requested and that plaintiffs were informed of this fact by the clerk. They then failed to re-submit the instruction in typed form as a special instruction. Obviously the clerk could not submit a ‘deleted’ instruction to the court unless specially requested by plaintiffs in typed form. There was, therefore, no proper ‘request’ and no ‘refusal’. Moreover, the substance of BAJI 201–E is covered by BAJI 102–A and BAJI 201, both requested by plaintiffs and both given as requested. While the latter two instructions may have been somewhat inadequate under the facts in this case, that question is not now properly before this court.

Plaintiffs next contend that the court erred in instructing the jury in the language of BAJI 137, ‘Duty of One in Imminent Peril’. In substance the jury was charged that one who, being free of negligence, is ‘suddenly and unexpectedly confronted with peril’ either to himself or to other persons, is not required to exercise the judgment and prudence otherwise required in the exercise of ordinary care, and that if the one so ‘suddenly and unexpectedly’ faced with a perilous situation acts as an ordinarily prudent person would act under the same conditions, it is immaterial that ‘in the light of after-events, it should appear that a different course would have been better and safer’. Plaintiffs argue that there was no evidence upon which this instruction could be based for, they say, it clearly appears that Reynolds observed David from a considerable distance away and that he was required by law to anticipate any sudden or unexpected movements which David might make which would place him in a position of peril. The question of suddenness or unexpectedness was, of course, one for the jury. The instruction properly informed the jury that it would not be applicable unless the jury should first find that Reynolds was himself free from negligence at the time that he was confronted by the swiftly darting boy. Moreover, this instruction was proper in response to one of plaintiffs' theories of liability. Plaintiffs argued that Reynolds could have avoided the accident by a slight swerve to the left, thus, defendant was entitled to an instruction charging the jury that if Reynolds was free of negligence until he was suddenly confronted by the darting boy, he was not required to thereafter exercise that degree of judgment which he would be required to use in a calmer and more deliberate moment. It is clearly defendant's theory that Reynolds was suddenly confronted by the unexpected movement of David which propelled the boy in front of defendant's car, and there is substantial evidence to support this view of the facts. Defendant was, therefore, entitled to the instruction and there was no error in giving it. Powell v. Bartmess, 139 Cal.App.2d 394, 294 P.2d 150; Edgett v. Fairchild, 153 Cal.App.2d 734, 314 P.2d 973; Patterson v. Delta Lines, Inc., 147 Cal.App.2d 160, 304 P.2d 842. Plaintiffs cite Kuist v. Curran, 116 Cal.App.2d 404, 253 P.2d 681, as holding this instruction improper under the facts. That case is not in point for the plaintiff therein was standing in the middle of the street and the defendant at all times was aware of the plaintiff's position of peril. There could obviously be no unexpectedness nor suddenness in such a situation.

We next consider three instructions which were given to the jury and which plaintiffs assign as error: (1) BAJI 138–C, ‘Right to Assume Normal Faculties of Others'; (2) BAJI 101–B, ‘Negligence—Further Elaboration of Definition’; and (3) BAJI 201–A, ‘Pedestrian's Duty—Right of Way—Amount of Caution’. We consider these three instructions together for the challenge to each is infected with the same vice.

The trial court gave BAJI 147 and 148 at plaintiffs' request. BAJI 147 reads, as modified by the trial court: ‘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 his actions by the same standard as applies to an adult. It is for you to determine the mental capacity and experience of David Cummings, and whether his 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.

‘In respect to any duty of persons using or being on a public street or highway concerning which I have instructed or may instruct you, when you consider such duty in relation to the conduct of a child, you will have in mind the regard which the law has for the limited experience and capacity of a child, as I have just stated the matter to you.’ (Emphasis added.)

BAJI 148 reads: ‘Ordinarily it is necessary to exercise greater caution for the protection and safety of a young child than for an adult person who possesses normal physical and mental faculties. One dealing with children must anticipate the ordinary behavior of children. The fact that they usually cannot and do not exercise the same degree of prudence for their own safety as adults, that they often are thoughtless and impulsive, imposes a duty to exercise a proportional vigilance and caution on those dealing with children, and from whose conduct injury to a child may result.’

These two instructions permeated and qualified all of the other instructions pertaining to the standard of care and duty questions applicable to either party. With respect to the giving of BAJI 138–C, which in substance instructed the jury that a person exercising ordinary care has the right to assume that others are possessed of the normal faculties of sight and hearing and of ordinary intelligence, plaintiffs contend that this instruction is in conflict with BAJI 147 and 148 in that it establishes an adult standard of care for the minor plaintiff and, in turn, requires that defendant exercise only that standard of care applicable to adult pedestrians. However, rather than conflicting with BAJI 147 and 148, the three instructions must be read together. The jury was clearly instructed that they were to consider the duty of David in relation to the conduct required of a child in applying any of the instructions given to them. Therefore, when the court instructed that a person exercising ordinary care has the right to assume that others are possessed of normal faculties and ordinary intelligence, as this right applied to the defendant, it could only be inferred to mean that the defendant had the right to assume that David was possessed of faculties ‘normal’ for a child of his age and experience, and of intelligence which would be considered ‘ordinary’ for such a child. Further, BAJI 148 clearly told the jury that the defendant was required to exercise greater caution for a young child than for an adult and that defendant was required to anticipate the ordinary behavior of children and their often thoughtless and impulsive conduct. Clearly, the jury could not have inferred that defendant had the right to assume that David was possessed of ‘normal’ adult faculties and intelligence. Garibaldi v. Borchers Bros., 48 Cal.2d 283, 291, 309 P.2d 23.

In criticizing BAJI 101–B, which instructed the jury that the applicable standard of care was not that of an extraordinarily cautious individual, but rather that of an ordinarily prudent person, plaintiffs apparently contend that this instruction should never be given when a child is involved in accident litigation. The instruction is, of course, entirely proper unless it could be said to be in conflict with BAJI instructions 147 and 148. Such is not the case for, clearly, the standard of care for an ordinarily prudent driver, where children are involved, is that such driver must exercise a degree of ‘vigilance and caution’ commensurate with the known ‘thoughtless and impulsive’ propensities of children of tender years. Again, it is clear that the jury was properly instructed to interpolate BAJI 147 and 148 into all instructions relating to the duties of both David and defendant and in applying the standard of care chargeable to each. The same result is evident in BAJI 201–A, which details the duties of a pedestrial in crossing a roadway, and which states: ‘The amount of caution required to constitute ordinary care increases as does the danger that a reasonably prudent person, in like position, would apprehend in a situation’. It is clear that the phrase, ‘a reasonably prudent person, in like position’ must have been taken by the jury to mean ‘a reasonably prudent minor of like age and position’. Therefore, the amount of caution which David was required to exercise in going upon the roadway was only that required of a minor in like circumstances.

The all-pervading effect of BAJI 147 and 148 is thus apparent. While the trial court might easily have reiterated the standard of care owed by a minor and to a minor at each step of the way, such cumulative emphasis was not essential. We must assume that the jury followed the instructions given and that it did, in fact, apply the limitations and qualifications inherent in BAJI 147 and 148 to all of the instructions pertaining to duty and standard of care. There was, therefore, no error in giving the three instructions considered above.

The trial court instructed the jury in the language of Vehicle Code, § 562,1 charging the jury that if plaintiff David failed to yield the right of way to defendant's automobile when he darted across the road, a presumption of negligence would thereupon arise, which presumption could be overcome only by evidence upon which the jury could find that his conduct was excusable or justifiable. Plaintiffs argue that the jury should also have been instructed in the language of Penal Code, § 26, which requires that for a minor under the age of 14 to be guilty of a crime, such minor must know its wrongfulness. No such instruction was requested by plaintiffs. Therefore, error may not be predicated upon the ‘failure’ of the trial court to give it. The instruction that was given was a general instruction and was correct insofar as it went. If plaintiffs desired that the instruction be limited or to be made more specific, they should have requested such modification or special instruction. Having failed to do so, they may not now complain. Ornales v. Wigger, 35 Cal.2d 474, 218 P.2d 531; 48 Cal.Jur.2d 198, § 166 and cases there collected.

Finally, plaintiffs contend that the trial court erred in refusing to instruct in the language of Vehicle Code § 530(a) (now § 21751). In its relevant portions, § 530(a) reads: ‘Except when a roadway has been divided into three traffic lanes, no vehicle shall be driven to the left side of the center line of a roadway in overtaking and passing another vehicle proceeding in the same direction unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the safe operation of any vehicle approaching from the opposite direction or any vehicle overtaken.’ (Emphasis added.)

Plaintiffs argue that a favorable construction of the evidence required the giving of this instruction. This contention is unsound, for it ignores the basic meaning and intent of § 530(a). It is plaintiffs' theory: (1) That Reynolds was attempting to pass the large truck immediately ahead of him; (2) that when he ‘swerved’ over the center line he was confronted with a southbound car in such close proximity as to constitute an immediate danger; and (3) that in an attempt to avert a collision, Reynolds ‘swerved’ back to the right and thereafter struck the plaintiff, David. The strongest evidence favorable to plaintiffs on this issue tends to prove only that Reynolds swerved over the center line and then swerved back to the right. At the time this swerve occurred, the County car was following the truck at a distance of at least one car length and there was no testimony that Reynolds made any attempt to pull abreast of the truck. This is not enough to require the giving of an instruction on § 530(a). The italicized portions of § 530(a), quoted above, supply the key to the construction and application of that statute. Thus, in order to constitute a violation of § 530(a), it must be shown that a vehicle was ‘driven to the left side of the center line of a roadway in overtaking and passing’ a vehicle ahead. Obviously, at least an ‘overtaking’ must be clear from the evidence. On this point, plaintiffs' case fails.

The word ‘overtaking’ has been variously defined as meaning ‘to come or catch up with in a course or motion’ (Moore v. Miller, 51 Cal.App.2d 674, 679, 125 P.2d 576, 579; Ringwald v. Beene, 170 Tenn. 116, 92 S.W.2d 411; Webster's New International Dictionary, 2nd Ed.), as synonymous with the word ‘passing’ (The Virginian, D.C., 217 F. 604, 616.), and as meaning ‘to catch up with and pass, as in an automobile’ (Employers Fire Insurance Co. et al. v. Cliff Wood Coal & Supply Co., 85 Ohio App. 77, 87 N.E.2d 900, 903; Webster's New International Dictionary, 2nd Ed.). In Moore v. Miller, supra, 51 Cal.App.2d 674, 125 P.2d 576, the court construed the term ‘before overtaking’ as used in § 528 of the 1935 Vehicle Code2 (which required audible warning by an overtaking car) as meaning ‘before coming or catching up with’ the vehicle to be overtaken and passed, rather than ‘to catch up with and pass'. This construction seems proper, particularly in light of the use of the conjunctive ‘overtaking and passing’ in the introductory language of § 528. The same language is used in § 530(a); thus, the same construction applied. ‘Overtaking’ and ‘passing’ as used in § 530(a) connote two separate acts, the former necessarily preceding the latter. Thus, the definition of ‘overtaking’ as found in the Employers Fire Insurance Co. et. al. v. Cliff Wood Coal & Supply Co., and The Virginian cases, both supra, to the effect that an ‘overtaking’ involves a ‘passing’ is not applicable to § 530(a).

Illustrative of the position of the California courts on this point is the case of Fate v. Gross, 61 Cal.App. 146, 214 P. 465, in which a motorcyclist was proceeding at a higher rate of speed than an automobile traveling ahead of him. A collision occurred when the automobile was swung sharply to the left in front of the approaching motorcycle. The fact that the motorcycle was approaching from the rear at a greater rate of speed did not constitute it an ‘overtaking vehicle’ for the purposes of the ‘audible signal’ statute. Thus, a mere swerving across the center line could not constitute an overtaking or a ‘coming or catching up with’ a vehicle ahead for the purposes of the statute in question. Something more is required. The ‘overtaking’ car must have been driven to a point where it could be said to have been in the act of ‘overtaking’, not merely an act preparatory to a possible overtaking and passing. We do not here determine the specific physical juxtaposition required to constitute an ‘overtaking’ within the statute, but rather, we hold that the evidence adduced in the case before us did not establish such an ‘overtaking’. Therefore, the court did not err in refusing plaintiffs' requested instruction on § 530(a).

The judgment is affirmed.


1.  Now Vehicle Code 1959, § 21954.

2.  Now Vehicle Code 1959, §§ 21750, 21753.

FOX, Presiding Justice.

ASHBURN, J., and NOURSE, J. pro tem., concur.

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