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District Court of Appeal, Third District, California.

Mildred S. POBOR and Peter Michael Pobor, a minor, by and through his Guardian ad litem, Mildred S. Pobor, Plaintiffs and Appellants, v. WESTERN PACIFIC RAILROAD COMPANY, a corporation, Defendant and Respondent. *

Civ. 9607.

Decided: March 21, 1960

Thomas W. Loris, Sacramento, for appellants. Johnson, Davies & Greve, Sacramento, for respondent.

Plaintiffs, widow and minor son of decedent Michael Pobor, sought damages from the defendant Western Pacific Railroad Company in an action for wrongful death. From a judgment entered upon a defense verdict they now prosecute this appeal.

The present litigation grew out of the same collision as that which gave rise to the case of Dragash v. Western Pacific Railroad Co., previously decided by this court and reported in 161 Cal.App.2d 233, 326 P.2d 649. The accident occurred shortly before daylight on April 30, 1955, at a railroad crossing in the city of Sacramento when one of defendant's trains collided with an automobile owned by Eli Dragash, in which he and the deceased were riding. Pobor was killed instantly. Although Dragash survived, he was so seriously injured that at the time this matter came to trial he was unable to recollect the circumstances surrounding the accident. In view of the evidence of Pobor's intoxication at the time of the accident, plaintiffs sought to show that the vehicle was being driven by Dragash. This issue, as in the Dragash case, was vital to plaintiffs' case. The only testimony concerning the physical facts was given by police officers who arrived at the scene of the accident shortly after its occurrence and by members of the train crew. The officers testified that Pobor was lying across the front seat of the automobile with his head toward the left door, his back against the front seat. His left leg was bent backward under the seat, and his right foot was on the floorboard of the right side of the car. Dragash was sitting on Pobor's leg, leaning toward the instrument panel on the right side of the automobile. His feet were entangled with the brake pedal and the steering column, his right foot being over the brake pedal. The train crew testified substantially to the same effect. Additionally two of the crew testified that from the time they first saw the car until after the impact, the occupants of the car did not change positions. The autopsy surgeon testified that the cause of Pobor's death was a fractured neck; that the trunk and extremities of his body showed no gross signs of injury; that there were multiple lacerations of the face and ears, and that there was an area of skin missing from his forehead which measured 1 x 1 1/2 centimeters. A linear-shaped piece of human skin, approximately three inches in length and less than an inch in width, was found on the upholstery above the rear vision mirror and on the right side of the automobile. It was discovered by a Mr. Roger S. Greene, a criminologist employed in the laboratory of the State Bureau of Criminal Identification and Investigation, when he examined the automobile five days after the accident. Greene testified that in the course of his work he was frequently requested in cases of serious accident to determine which person among the occupants of a given car was the driver thereof, and that he made such identification from specimens of blood, hair and fabric or other such substances.

The plaintiffs then attempted to prove by Greene that Dragash was driving the automobile at the time of the fatal accident. Defendant's objection to the proposed hypothetical question was sustained on the two-fold ground that the question was improper, and that the matter was not a subject for expert opinion. This ruling of the trial court, as we held in the Dragash case, was error since the question of who was driving the Dragash automobile ‘* * * could be the subject of expert testimony by a qualified witness and that it was error to hold that the issue was not one which could be properly the subject of expert opinion.’ 161 Cal.App.2d 240, 326 P.2d 654. This conclusion necessarily brings into play section 4 1/2 of article 6 of the Constitution.

In support of its contention that the error was not prejudicial, defendant argues that whether or not Pobor was the driver of the car was of no consequence, since even if Dragash were the driver, Pobor would necessarily be guilty of contributory negligence if the jury believed the testimony of the train crew. We do not so view the case. If Dragash was driving the car and was negligent, his negligence could not be imputed to Pobor. While Pobor was under a duty to exercise reasonable care for his own well being, whether or not he exercised such care was a question of fact for the jury. ‘While a passenger who has no control over the automobile or the driver is not held to the same rule as to contributory negligence as the driver and it is not demanded of the passenger that he exercise the same high degree of observation as is required of the driver [citations], nevertheless he is normally bound to protest against actual negligence or recklessness of the driver, the extent of his duty in this regard depending upon the particular circumstances of each case, and it is a question for the jury. [Citation.]’ Martindale v. Atchison T. & S. F. Ry. Co., 89 Cal.App.2d 400, 408–409, 201 P.2d 48, 53.

The facts of the instant case present a unique situation. Since Pobor is dead and Dragash unable to testify, the plaintiffs herein were entitled to the presumption that Pobor took ordinary care of his own concerns. Code Civ.Proc. § 1963, subd. 4; Downing v. Southern Pac. Co., 15 Cal.App.2d 246, 59 P.2d 578; Lugo v. Atchison, T. & S. F. Ry. Co., 128 Cal.App.2d 402, 406, 275 P.2d 605. If, therefore, Dragash was driving the car and Pobor, despite his intoxication, should as a reasonable man under the circumstances, have warned Dragash of the danger ahead, it would seem to follow that Pobor would be presumed to have given such warning. See Shelton v. Ackerman, 117 Cal.App. 679, 682–683, 4 P.2d 598. Under the circumstances of this case, therefore, the jury might well have found that Pobor was not guilty of contributory negligence if it believed he was the passenger. In that event the jury would have been forced to weigh the presumption that he was careful against whatever inferences to the contrary it might choose to draw from the other evidence in the case. That the jury's determination of this issue was more likely to be favorable to appellants if he was an intoxicated passenger than if he was an intoxicated driver is obvious.

As the record stands the only evidence on the issue of who was driving the car is the testimony of railroad employees which indicates that Pobor was driving. If this was the fact, the conclusion that he was contributorily negligent would be almost inescapable. If Greene had been permitted to testify, the jury would have had before it evidence from which it might have concluded that Dragash was the driver and Pobor the passenger, and that Pobor was not negligent in his conduct. The effect of the court's ruling was to leave uncontradicted before the jury evidence which was almost certain to be fatal to plaintiffs' case. It necessarily follows that the court committed prejudicial error in refusing to permit Greene to answer the hypothetical question put to him.

The plaintiffs further contend that the trial court erred in instructing the jury upon the requirements of section 670, subdivision (a), of the Vehicle Code1 as that statute stood prior to 1957. At that time that section required every motor vehicle to be equipped with brakes adequate to bring it to a stop on asphalt or concrete surface within certain distances at given speeds. In the present case the court did not instruct the jury upon all of the stopping distances set forth in that statute but only as to the distances for the speeds of 10, 15 and 20 miles per hour. There is absolutely nothing in the record which tends to prove that the brakes on this automobile were defective, or that the driver of the automobile (whoever he was) attempted to apply the brakes. In the absence of such evidence it was error to instruct the jury on the provisions of this statute. Pennington v. Southern Pac. Co., 146 Cal.App.2d 605, 617, 304 P.2d 22, 65 A.L.R.2d 690; Ketchum v. Pattee, 37 Cal.App.2d 122, 129, 98 P.2d 1051. Defendant's argument that the instruction was proper because the jury was also instructed that Pobor and Dragash were presumed to have exercised ordinary care and obeyed the law immediately prior to the accident is wholly specious. Even if these presumptions extend to the condition of the car's brakes, the instruction upon braking distances was wholly inapplicable. What was prerequisite to the applicability of the instruction was evidence that the brakes were in a faulty or defective condition, not evidence that they were in good condition. Absent any evidence that the brakes of the automobile were applied or that they were defective, it was error to instruct the jury as to the former requirement of brakes adequate to bring a vehicle to a stop within certain specified distances.

Following the filing of the appeal herein, plaintiffs moved to augment the record to include two instructions given by the trial court upon the subject of unavoidable accident. This motion was granted. Defendant thereafter moved to further augment the record so as to include therein oral comment of the trial judge at the time of the hearing on the motion for a new trial. It is therein alleged that the trial judge stated that in his opinion the jury's verdict would not have been different had these two instructions not been given. After an examination of the entire record we must conclude that under the facts and circumstances presented, it was error to have instructed the jury on unavoidable accident. Butigan v. Yellow Cab Co., 49 Cal.2d 652, 657–660, 320 P.2d 500, 65 A.L.R.2d 1.

Numerous other contentions are made by plaintiffs concerning instructions given and refused by the trial court. Although some of the language therein used may well be termed inept, nevertheless in the event of a retrial of the present controversy, the matters therein complained of may well be taken care of then.

The judgment is reversed.


1.   Now §§ 26300, 26306, 26450, 26451.

PEEK, Justice.

VAN DYKE, P. J., and SCHOTTKY, J., concur. Hearing granted; Dooling, J. pro tem., sitting in place of SPENCE, J.

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