BECKER v. JOHNSTON

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Court of Appeal, Third District, California.

Frank BECKER and Madeline Becker, Plaintiffs, v. Margaret Jean JOHNSTON, Defendant.

Margaret Jean JOHNSTON, Cross-Complainant and Appellant, v. Frank BECKER and County of Sacramento, Cross-Defendants and Respondents.

Civ. 11265.

Decided: December 02, 1966

Rust & Hoffman, Sacramento, by Ellis Horvitz, Los Angeles, for defendant-cross-complainant-appellant. Kenneth B. Cayocca, and McGregor, Bullen & Erich, by Michael M. McKone, Sacramento, for plaintiffs-respondents. McLaughlin, Russell, McCarthy, & Kaelin, by Jerome M. McLaughlin, Sacramento, for respondent Sacramento County.

Frank Becker and Madeline Becker commenced this action for personal injuries against Margaret Jean Johnston, who in turn cross-complained against Frank Becker and the County of Sacramento. A motion of the County of Sacramento for summary judgment was denied. The Beckers' claim against defendant Margaret Johnston was settled and the case proceeded to trial before a jury solely on Mrs. Johnston's cross-complaint against Frank Becker and the County of Sacramento. At the conclusion of cross-complainant's case the trial court granted motions of nonsuit in favor of Frank Becker and the County of Sacramento. This appeal is from the judgment of nonsuit.

The law of this state as it relates to a nonsuit is set forth in Meyer v. Blackman, 59 Cal.2d 668, 671–672, 31 Cal.Rptr. 36, 38, 381 P.2d 916, 918, in the following language:

‘At the outset it must be remembered that a nonsuit may be granted ‘* * * ‘only when, disregarding conflicting evidence and giving to plaintiff's evidence all the value to which it is legally entitled, herein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff if such a verdict were given.’' (Estate of Lances, 216 Cal. 397, 400, 14 P.2d 768.) Thus, ‘while in most appeals it is the duty of the reviewing court to indulge every reasonable intendment in favor of sustaining the trial court, substantially the reverse is true when the appeal is from an order of nonsuit. In the latter case the appellate court must view the evidence as though judgment had gone in favor of the appellant, and order a reversal if such a judgment can be sustained.’ (Raber v. Tumin, 36 Cal.2d 654, 656, 226 P.2d 574, 575; see also Jones v. Hotchkiss, 147 Cal.App.2d 197, 204–205, 305 P.2d 129.)' (And see Zeppi v. Beach, 229 Cal.App.2d 152, 154, 40 Cal.Rptr. 183.)

‘* * * However, as the court in Ulwelling v. Crown Coach Corp. (1962) 206 Cal.App.2d 96, noted at pp. 104–105, 23 Cal.Rptr. 631, at pp. 635–636 [99 A.L.R.2d 1060]: ‘[B]efore a judgment of nonsuit can be disturbed, there must be some substance to plaintiff's evidence upon which reasonable minds could differ; proof that raises mere speculation, suspicion, surmise, guess or conjecture is not enough to sustain his burden. [Citations.] ‘* * * as pointed out in Reese v. Smith, 9 Cal.2d 324, at page 328, 70 P.2d 933, at page 935: ‘If the existence of an essential fact upon which a party relies is left in doubt or uncertainty, the party upon whom the burden rests to establish that fact should suffer, and not his adversary. [citation.] A judgment cannot be based on guess or conjectures. [citation]’ * * * Substantial evidence is required to establish each essential affirmative allegation—a scintilla of evidence is not sufficient for that purpose. [Citation.]' * * * Thus, the burden was upon plaintiffs to establish that defendants had some duty to them and breached it, and that such breach was the proximate cause of the accident; if there is no evidence of substance tending to prove the controverted facts necessary to establish the plaintiffs' case, the motions for nonsuit were in order.' [Citations.]

‘In Cassell, supra [Cassell v. McGuire & Hester], in reversing a judgment of nonsuit, the court pointed out, 187 Cal.App.2d [579] at page 589, 10 Cal.Rptr. [33] at page 39: ‘Nonsuit may not be denied merely because there is testimony which may make out a prima facie case for plaintiff, when considered out of context, or when predicated upon hypothetical facts unsupported by the evidence. It is not a question of whether a jury may return a verdict for the plaintiff, but whether such a verdict, if returned, finds support in the recorrd, and may be permitted to stand, keeping in mind the issues and what it is that the plaintiff must prove.’' (Guillory v. American President Lines, 230 Cal.App.2d 296, 302–303, 40 Cal.Rptr. 796, 797–798.)

Turning to an examination of the record, we find the accident happened in the County of Sacramento on the night of March 24, 1963, on Auburn Boulevard, a two lane highway, near its intersection with Sylvan Road. This forms a Y intersection. (Appended hereto is a diagram of said intersection (a reduced photostat of Plaintiff's Exhibit 2).)

The Johnston car, southbound on Auburn, crossed into the northbound lane at the Y intersection at Sylvan, colliding with the Becker car, which was traveling north on Auburn. Auburn is a through highway which runs generally north to south. As one travels south on Auburn it curves to the right as it approaches Sylvan, which cuts into Auburn in a south to north path. Sylvan Road traffic is controlled by a stop sign at this intersection. Auburn comprises the stem and right arm of the Y. At the stem Auburn runs in a north-south direction, the base of the stem being north of the intersection. At the intersection, Auburn, as it gradually curves to the right in a southwesterly direction, creates the right arm of the Y, the left arm being Sylvan. The speed limit was 40 miles per hour. There was no stop sign regulating northbound traffic on Auburn as it entered the intersection. Neither was there a stop sign regulating southbound traffic on Auburn as it entered and proceeded through the intersection, regardless of whether such traffic turned to the right and remained on Auburn or continued in a straight line across the northbound lanes of Auburn into Sylvan. The only stop sign at the intersection was the one regulating northbound traffic on Sylvan.

On Auburn, 750 feet north of the intersection, there are two standard highway signs facing southbound traffic. The northermost sign was yellow with a black arrow curving to the right, indicating, of course, that Auburn curved to the right. Farther south, approximately 350 feet north of the intersection, there was a Y sign indicating the intersection. Auburn had a ‘noticeable’ superelevation or bank in its curve to the right. A double line marked the center of Auburn except for a short distance where Auburn intersects with Sylvan.

The night was dark, the weather was clear, and visibility was good. There was testimony that ‘at the beginning of the curve’ the driver of the southbound vehicle had unobstructed visibility of Auburn to a point at least halfway around the curve, a distance of 400 to 450 feet.

Mrs. Johnston was on her way home at the time of the accident, which occurred at about midnight. She was proceeding south on Auburn at 35 to 40 miles per hour in the direction of the Y intersection. There was no stationary illumination at the intersection. She was not familiar with this area and had never been there before. She was not aware that Auburn curved to the right and that if she continued to drive straight ahead she would go on to Sylvan Road. Actually, she intended to continue southbound on Auburn rather than to go on to Sylvan Road. She did not recall noticing any specific signs prior to entering the intersection, and she did not know that the place at which the accident occurred was in fact an intersection. Thus, she failed to observe either the curve sign 750 feet from the intersection or the Y sign 350 feet therefrom.

Immediately preceding the accident Mrs. Johnston first saw a set of directly oncoming headlights on the other side of the road. At about the same time she saw the headlights on what proved to be Mr. Becker's car approaching her from what appeared to be a right angle. She kept his car in view at all times, but thought that it was approaching from a side road and would stop. It did not. She further testified that she did not see her car cross the double line at the intersection prior to the collision, and that if she had driven her car across a double line she would have seen it. However, there is a double line marking the center of Auburn, except for a short distance where it intersects with Sylvan as shown on the attached drawing.

Mr. Becker was proceeding north on Auburn around the curve at a speed of 35 to 40 miles per hour. He was familiar with the road and with the Y intersection. As he approached the intersection he saw Mrs. Johnston's headlights but no turning blinkers, and he assumed that she would continue around the curve on Auburn rather than proceed straight into Sylvan. He was unable to tell that Mrs. Johnston's vehicle was crossing the northbound lanes of Auburn until he was about 100 feet from the point of impact, at which time he was unable to avoid the collision.

He further testified that he first saw Mrs. Johnston's car come across into the northbound lanes at the point of the intersection where the double line is interrupted when he was at the point identified as B 3 in Plaintiff's Exhibit 2. When asked if he applied his brakes at this point, he replied: ‘Well, not there. Just as I got up a little farther I saw she was coming right across in front of me, then I applied the brakes.’

Auburn Boulevard, including the curve and intersection in question, had formerly been maintained by the State of California as Highway 40 and 99E. In 1956 the state relinquished control of the highway to the County of Sacramento. It was under the jurisdiction of the county engineer's office, which supervised and maintained approximately 1,900 miles of county highways at the time of this accident. After relinquishment of the road to the county, the county engineer's offices received reports from the California Highway Patrol of all accidents, which reports were recorded and charted. It also made traffic counts. Both of these procedures were admittedly good engineering practices. A count made of the vehicles using Auburn Boulevard just to the north of the intersection showed that an average of 11,800 vehicles used it during a day. In the period from 1959 to 1962, eight accidents of all types occurred in the vicinity, which included accidents to the north of the intersection. In that period three accidents were reported to be of a headon type collision, including one in which no injuries were reported.

We now consider the law which is applicable in this case. The accident occurred after the enactment of the moratorium legislation relating to governmental immunity from tort liability (Civ.Code, § 22.3), but prior to the effective date of the 1963 government tort liability legislation. (Gov.Code, § 810 et seq., Stats. 1963, ch. 1681.) Appellant contends that former Government Code section 530511 is applicable for it was effective until September 20, 1963, the effective date of the 1963 legislation. We do not agree.

In 1963 the Legislature added division 3.6 to the Government Code (§§ 810–996.6) to deal comprehensively with the problem of governmental immunity. This legislation specifically provides that ‘This act applies retroactively to the full extent that it constitutionally can be so applied.’ (Stats. 1963, ch. 1681, § 45, subd. (a).) As to cases involving the dangerous condition of property, it has been held that constitutional guaranties are not violated by retroactive application of the 1963 legislation. (Flournoy v. State of California, 230 Cal.App.2d 520, 41 Cal.Rptr. 190; Hayes v. State of California, 231 Cal.App.2d 48, 41 Cal.Rptr. 502; City of Burbank v. Superior Court, 231 Cal.App.2d 675, 42 Cal.Rptr. 23.) Claims arising after the enactment of the moratorium legislation can have validity only to the extent that the 1963 Legislature so declared. (Hayes v. State of California, supra, 231 Cal.App.2d at p. 51, 41 Cal.Rptr. 502; see also County of Los Angeles v. Superior Court, 62 Cal.2d 839, 845, 44 Cal.Rptr. 796, 402 P.2d 868.) We therefore hold that the applicable law is contained in the 1963 legislation.

Appellant by her cross-complaint against the County of Sacramento, alleges that Auburn Boulevard and Sylvan Road were public streets and highways in the County of Sacramento, California, which were owned, controlled and maintained by the County of Sacramento; that the county was charged with the duty to operate and maintain the intersection of said Auburn and Sylvan; that the county did so negligently design and construct the Auburn and Sylvan intersection that a dangerous and defective condition was created, further, that thereafter the county so negligently and carelessly controlled and maintained the intersection that it constituted a hazard and danger to automobiles traveling thereon, and having this knowledge failed to exercise reasonable care in correcting this condition.

The County of Sacramento raised by appropriate pleadings the defense provided by section 830.6 of the Government Code, which provides new standards and procedures for determining whether a properly approved plan or design has resulted in a dangerous condition. As previously set forth herein, this defense may constitutionally apply to this cause of action which accrued before section 830.6 was enacted. This section provides:

‘Neither a public entity nor a public employee is liable under this chapter for an injury caused by the plan or design of a construction of, or an improvement to, public property where such plan or design has been approved in advance of the construction or improvement by the legislative body of the public entity or by some other body or employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved, if the trial or appellate court determines that there is any substantial evidence upon the basis of which (a) a reasonable public employee could have adopted the plan or design or the standards therefor or (b) a reasonable legislative body or other body or employee could have approved the plan or design or the standards therefor.’

We observe that this court has the power to and does take judicial notice of the official records and files of the Transportation Agency, Department of Public Works, Division of Highways of the State of California (Code Civ.Proc. § 1875, subd. 3), which records and files contain the planning and construction data concerning the Auburn Boulevard and Sylvan Road intersection. From these records and files we take judicial notice that the construction of said intersection was completed in 1929; that at said time Auburn Boulevard was a California State Highway; that Auburn Boulevard and the intersection were constructed according to plans and specifications approved by the California State Highway Engineer and his subordinate engineers, who had discretionary authority to plan and construct Auburn Boulevard; that said engineers exercised their discretion in planning and constructing Auburn Boulevard and in the placing of the highway signs testified to herein.

The legislation adopted in 1963 by the California Legislature bars all tort actions against the state and other public entities not included within the comprehensive terms of this legislation. (Gov.Code, § 815.) Section 815 reenacts the general immunity of a public entity, ‘except as otherwise provided by statute.’ The extensive new legislation, which became effective September 20, 1963, governs claims and actions against public entities and public employees. (Gov.Code, §§ 810–895.8.)

It is appellant's contention that the evidence was sufficient to permit a finding of liability against the County of Sacramento under section 835 of the Government Code which provides:

‘Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:

‘(a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or

‘(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. (Added Stats.1963, c. 1681, p. 3275, § 1.)’

For appellant to prevail, there must be evidence of substance tending to prove that the county had some duty to her and breached it and that the breach was the proximate cause of the collision; that the injuries suffered were proximately caused by a dangerous condition of the county highway where the dangerous condition created a foreseeable risk of the kind of injury which was incurred; and that the county had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

Further, and as noted above, section 830.6 of the Government Code provides that no public entity is liable for the condition of public property where a reasonable public employee could have adopted, or a reasonable legislative body could have approved, the plan or the design or the standards therefor.

Auburn Boulevard and this intersection were constructed according to plans and specifications approved by the California State Highway Engineer, an employee of the state who had discretionary authority to and did exercise said discretion in planning and constructing Auburn Boulevard and this intersection and in the placing of the highway signs thereon.

The evidence is clear and from it this court so determines that reasonable public employees, the California State Highway Engineer and his staff, could have and did adopt the plan and design of and the standards therefor, and pursuant thereto did construct said boulevard and intersection.

Moreover, the appellant failed to prove that Auburn Boulevard, at the intersection with Sylvan, was a ‘dangerous condition.’ To establish liability in the county of Sacramento it was incumbent upon appellant to plead and prove all of the requirements of section 835 of the Government Code, namely: (1) the highway was in dangerous condition at the time of the injury: (2) the injury was proximately caused by this dangerous condition; (3) the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred; and, that either: (a) a negligent or wrongful act or omission of an employee of the county within the scope of his employment created the dangerous condition; or (b) the county had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

As used in the government tort liability legislation ‘’[d]angerous condition' means a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.' (Gov.Code, § 830, subd. (a).)

This court can and does hold as a matter of law that the condition of Auburn Boulevard was not within the above quoted definition of ‘dangerous condition,‘ there being two distinct traffic warning signs which a person exercising due care could see. There is no evidence in the record that the warning signs were obscure or that appellant could not have seen them had she looked. Thus the appellant has failed to establish a prima facie case that the boulevard constituted a ‘dangerous condition.‘

We next consider appellant's contention that the trial court erred in granting a nonsuit, because the issues of respondent Becker's liability and the application of the doctrine of last clear chance were questions for the jury.

Becker was proceeding north on Auburn Boulevard, a through street, at 35 to 40 miles per hour. He was familiar with the point where Sylvan Road intersects with Auburn Boulevard. It was a dark night and his lights were on low beam. He saw headlights approaching him—coming south on Auburn—and was not sure of their distance from him at this point. He assumed this car (Johnston) was approaching at the same speed and would go around the turn of Auburn. He was not and could not have been aware that the Johnston car would leave the southbound lane and cut in front of him into the northbound lane . The Johnston car had no blinker signals turned on and Becker first realized the Johnston car was on the ‘wrong side of the road’ when he was less than five feet from the point where Auburn meets Sylvan. At this time the Johnston car was about 100 feet from Becker. Becker testified to applying his brakes ‘Just as I got up a little farther I saw she was coming right across in front of me, than I applied the brakes.’ Becker's car skidded 21 feet and came to rest on the right side of the center line of Auburn. Johnston skidded 24 feet; the skidmarks commenced left of the center line of Auburn at a point where there is a yellow, painted double line. From the point at which Johnston applied her brakes to the point of impact she was in the path of Becker's car and on his side of the road.

As we view this case, reasonable minds could not differ, for it is clear that Mrs. Johnston negligently handled her vehicle in such a manner as to deliberately place herself in the lane of an approaching car, the presence of which would have been obvious to any careful driver by its headlights. Driving at a comparatively slow speed south on Auburn Boulevard, Mrs. Johnston failed to note a traffic sign 750 feet north of the intersection. This, if she had exercised due care, would have alerted her to the curve to the right. Farther along, approximately 350 feet north of the intersection, the presence of the intersection was also indicated by another sign. Although the accident happened at night, there is no reason why a careful driver would not have seen the signs reflected by her headlights. As noted before, there is no evidence in the record that the warning signs were obscure or that Mrs. Johnston, in the exercise of ordinary care, could not have seen them had she looked.

Notwithstanding Mrs. Johnston's testimony that she saw Becker's lights (on low beam), apparently at right angles to her (i. e. heading east) and assumed he was approaching from a side road, the testimony does not permit reasonable rationalization that she was exercising due care immediately prior to the collision. The subsequent maneuvers of the Becker car demonstrate that had Mrs. Johnston been exercising due care she would have observed the headlights of the approaching Becker car, which unquestionably and actually described the arc of the curve of Auburn Boulevard for a distance of over 500 feet from the point where she first saw him at right angles to the point of collision. The fact that the headlights did describe such an arc would have made the curve in the road obvious to anyone using his ordinary senses. Also, the double center line, except for a short distance, continuously described the arc of the curve and should have made it clear to anyone driving with due care that the highway curved to the right.

In fact, appellant concedes the possibility of negligence, for she argues the doctrine of last clear chance. The rules relating to the doctrine of last clear chance are reviewed in detail in Brandelius v. City & County of San Francisco, 47 Cal.2d 729, 306 P.2d 432, and are not restated here. However, as the court noted in Todd v. Southern Pac. Co., 184 Cal.App.2d 376, at page 378, 7 Cal.Rptr. 448, at page 450:

‘These rules are the basis for the oft-repeated statements of our courts that ordinarily the doctrine cannot be applied to an intersection case involving a collision between two moving vehicles, and that the doctrine ‘never meant a splitting of seconds when emergencies arise.’ [Citations.]'

The case before us is no exception.

We are of the opinion that from the evidence there is only one conclusion to be drawn, that is, from the time Becker had actual knowledge of Johnston's position of danger and from the time Becker had further knowledge, actual or constructive, of Johnston's inability to escape therefrom, there was no time for Becker to take any other action to avert the collision.

The judgment of nonsuit in favor of Frank Becker and the County of Sacramento is affirmed.

FOOTNOTES

1.  Former Government Code section 53051 read:‘A local agency is liable for injuries to persons and property resulting from the dangerous or defective condition of public property if the legislative body, board, or person authorized to remedy the condition:‘(a) Had knowledge or notice of the defective or dangerous condition.‘(b) For a reasonable time after acquiring knowledge or receiving notice, failed to remedy the condition or to take action reasonably necessary to protect the public against the condition.’

REGAN, Justice.

PIERCE, P. J., and FRIEDMAN, J., concur. Hearing granted; SULLIVAN, J., not participating.