TAYLOR v. OAKLAND SCAVENGER CO (1940)

While attending the Castlemont high school as a student, the plaintiff ran into an automobile truck and was injured. She commenced an action to recover damages. In her complaint she named as defendants Oakland Scavenger Company, a corporation, Oresti Santucci, Albert Santucci and Oakland High School District of Alameda County, a public corporation. All of the defendants answered and a trial was had before the trial court sitting with a jury. The jury returned a verdict in favor of the plaintiff fixing the damages at $25,000. The trial court reduced the amount to $20,000. From that judgment all of the defendants have appealed. We will discuss first the appeal taken by the school district.

Appeal of Oakland High School District.

Castlemont high school comprises over ten acres. On the east side it faces Foothill boulevard. In general the tract is in the form of a parallelogram. The main building faces the boulevard. Back of it stands the gymnasium building, which is separated from the main building by a court which is about 43 feet wide and 175 feet long. West of the gymnasium, 80 feet distant, is the eastern boundary of the athletic field which is in the shape of an oval and extends from the north side to the south side of the school property. A vehicular road enters about the middle of the southern boundary and leads along the western side of the gymnasium, turns around the north end of that building and leads to the court between the gymnasium and the main building. An examination of the exhibits does not disclose any fences but does show guard posts in different positions.

The defendant Albert Santucci was driving along the driveway provided for trucks making deliveries to the school cafeteria and was out from the gymnasium building about four or five feet. He sounded no horn as he rounded the corner and two of the witnesses placed the speed of the truck at 25 miles per hour. Santucci was thoroughly familiar with the plan of the courtyard, had seen the children on the playground, and knew that they went back and forth between the gymnasium and the playground. He had seen the girls and boys running around there; and had been going in and out of the school yard for about six years.

The plaintiff, Eleanor Taylor, was a minor of the age of sixteen years, in attendance at the Castlemont high school in Oakland at the time she was injured on the morning of September 29, 1936. One of her classes consisted of physical culture, which was compulsory for the students. The class assembled in the gymnasium, and after the girls had changed their clothes the roll was called in the gymnasium by the gymnasium teacher, who, in this instance, was Miss Miller. The teacher designated what game the class was going to play and the teams organized in the building and then proceeded to the playground. The plaintiff and her witnesses testified it was the ordinary custom and practice for the girls in their class, as well as in the other classes, to run to the playground. Miss Miller, the teacher in charge of the class, testified there was no regular custom or practice for them to run rather than to walk out and that very frequently the students just sauntered or made their way out in a leisurely fashion. In leaving the gymnasium and going to the athletic field the plaintiff and her associates passed through a door on the east side of the gymnasium, turned to the left and traversed a course almost directly north toward the corner of the building. Except some of the guard posts just mentioned, nothing obstructed their view of the court and the school grounds to the north including a part of the athletic field on which they were going to play. The plaintiff was familiar with the various structures and improvements on the school grounds and from time to time had seen vehicles using the road and court just described. The plaintiff had attended the school from early in January, 1936, until the accident happened, September 29, 1936. At times she had entered the Hillside gate and at different times had walked over the grounds of the high school. From time to time she had seen vehicles on the grounds and in the court above mentioned. She had seen vehicles come in from the Foothill gate but had never seen them come in from the Hillside gate. On many occasions she had crossed and recrossed the road between the gymnasium and the playgrounds. She knew it was an automobile road extending from the Hillside gate to the said court; that it was marked by dots placed on the edges and was designed for automobile travel. She had seen a large number of service trucks that had occasion to go into the school grounds. She knew there was no stop sign erected on the road and she knew at the time she was going to the playgrounds that it would be necessary for her to cross said roadway. At times she had seen a garbage can at the corner of the gymnasium.

On the morning of the accident the plaintiff left the gymnasium building and was proceeding to the playground with the purpose of playing volley ball with the other students of the class, which numbered about thirty-five. The plaintiff was one of the first girls out of the gymnasium door. She was running as fast as she could with her head down, trying to beat Elvina Vann over to the playground. As she ran she did not notice objects on her right or left. After running for a distance of about sixty-five feet, she approached the vehicular road which she knew was designed for the use of automobiles bringing supplies to the cafeteria. The plaintiff and Elvina Vann, with their heads down, both ran into the right hand side of the garbage truck, which at the time was being driven by the defendant Albert Santucci. The record shows that Elvina Vann hit the truck first at about the right hand front fender and the plaintiff hit the truck immediately afterwards at about the center of the cab door, buckling it in. No object would have obscured their vision of the truck if the girls had looked before they reached the corner of the gymnasium. But the plaintiff testified she saw the truck just the instant before she was struck. The truck was then two-thirds past the east line of the gymnasium building. The plaintiff was examined and cross-examined. From that examination it clearly appears that she is in full possession of all her senses and has more than ordinary intelligence. She had at the time of the accident completed her first year in Castlemont high school. For two years or more she had taken dancing lessons in school and had also taken private lessons. In the junior high school she had given lessons in dancing. That she was alert and active is shown by the fact she was, at the time of the accident, leading the entire class in an effort to reach the playgrounds and secure the first choice of courts in which to play the game about to be played.

Claiming that the plaintiff was guilty, as a matter of law, of negligence which proximately contributed to the accident, the defendant, in the trial court, in due time made motions for a nonsuit, for a directed verdict, and for judgment notwithstanding the verdict. All of its motions were denied and it now makes many points including the one just mentioned. As we think the plaintiff was guilty of contributory negligence, as the defendant contends, we will address ourselves to that point only.

Conceding, without deciding, that the school authorities had made no special conditions or regulations applicable to the traffic upon the vehicular road, it follows that the case is governed by the provisions of the Vehicle Code, sec. 603, subd. (c), St.1935, p. 196, in so far as the issue of negligence is involved. As to the rights and duties of persons using the roads involved, the law is well settled. 13 Cal.Jur. 373; 13 R.C.L. 426; 29 C.J. 664. In 13 California Jurisprudence 373, Highways, section 61, the author says: “The duty cast upon both pedestrian and driver of a vehicle in their use of the public streets is reciprocal and equal, and neither of them has a right of way superior to the other. Although a pedestrian has a right to assume, until his senses, exercised with reasonable diligence, inform him to the contrary, that others using the highway will obey the law, and keep a reasonable lookout ahead and exercise ordinary care to avoid causing him injury, he is likewise required to exercise ordinary care for his own safety to be determined under all the circumstances of the case, an increase of care being required when there is an increase of danger. * While a pedestrian about to cross a street or highway is not under a positive duty to stop, look and listen, regardless of the circumstances, the exercise of ordinary care generally requires that he look for approaching vehicles in the direction from which danger is to be anticipated. The observation of ordinary care is imperative upon him during all of the time that he is crossing the highway.” Closely connected with the foregoing rule it should be noted it is also settled that, “The law does not make school districts insurers of the safety of the pupils at play or elsewhere.” Goodman v. Pasadena City H.S. Dist., 4 Cal.App.2d 65, 68, 40 P.2d 854, 855. Turning to the facts, we note that at about 10 o'clock in the morning on a clear day in a broad court, the plaintiff, without exercising any care whatsoever, ran forward as fast as she could run, with her head down, and plunged up against the cab door of the moving garbage truck. Such an act, if done by an adult, would clearly be negligence. Mayer v. Anderson, 36 Cal.App. 740, 743, 173 P. 174. An examination of the facts in the case cited will disclose that the plaintiff Mayer was not nearly so negligent as was the plaintiff in the present case. But the plaintiff contends she was a minor and that the same rule is not applicable. She quotes from 19 California Jurisprudence 605: “A child is required to exercise only that measure of care which children of the same age, and under similar circumstances, ordinarily exercise. The law has fixed no precise age at which it may be stated as a matter of law that an infant is accountable for his actions to the same extent as one of full age.” She also cites Anderson v. Walters, 135 Cal.App. 380, 383, 27 P.2d 100. The injured person in that case was a child ten years of age. Again she cites Shannon v. Central–Gaither U. School Dist., 133 Cal.App. 124, 130–134, 23 P.2d 769. The person whose injury was involved in that case was ten and a half years old. This plaintiff was nearly sixteen years old. The authorities so cited differ in other respects as will presently appear. The position of the plaintiff is to contend that in the present case it was a question of fact for the jury to determine whether she was sui juris or non sui juris. The same contention was presented in Todd v. Orcutt, 42 Cal.App. 687, 183 P. 963. On page 690 of 42 Cal.App., on page 964 of 183 P., the court said: “An infant may be so very young that, like an idiot or a lunatic, no negligence may legally be imputed to him. But not all infants are in that class. ‘It is,’ says Mr. Beach, ‘a question of capacity, and it has been found a very difficult question, and has been, in many cases, a very fruitful source of controversy as to what age is sufficient to constitute an infant sui juris. Unless the child is exceedingly young it is usually left to the jury to determine the measure of care required of the particular child in the actual circumstances of the case. Where there is no doubt as to the capacity of the child, at one extreme or the other, to avoid damage, the court will decide it as a matter of law.’ Beach on Contributory Negligence, § 117.” (Italics ours.) In passing it may be remarked that the evidence hereinabove set forth shows no possible doubt as to the capacity of this plaintiff and there is no evidence to the contrary. On page 691 of 42 Cal.App., on page 965 of 183 P., the court said: “The ultimate question of fact is: Was he guilty of contributory negligence? And we must assume that, in solving that question, the court applied the correct rule of law, which is that plaintiff was required to exercise the same degree of care, no more and no less, than would be expected from a child of his age, or which children of his years ordinarily exercise under like circumstances, taking into consideration, not only the boy's age, but his capacity for understanding. [Citing cases.]” Manifestly it was reasonable to expect that plaintiff and her associates would not perform such a rash act as she performed. In Moeller v. Packard, 86 Cal.App. 459, 261 P. 315, the injured child, without looking, ran out into the highway to recover some article that had blown from her hand. Having stated the facts, commencing on page 465 of 86 Cal.App., on page 318 of 261 P. the court said: “The rule applicable to circumstances such as are existent in the instant case is well stated in Depons v. Ariss, 182 Cal. 485, 188 P. 797. There the deceased stepped in front and in the path of the defendants' truck while the machine, operated by an employee of defendants, was traveling at a low rate of speed on a street in the city of Oakland. The general circumstances of that case it is not necessary to recite herein. It is sufficient to say that there was evidence strongly tending to show that the deceased took the perilous step without exercising the moderate care which would have at once suggested the dangerous consequences of such an act. After stating the facts in detail the court, on page 487 [of 182 Cal.] (188 P. 798) of the report, said: ‘Under the facts stated we are asked to reverse the judgment. This we cannot do. It was shown that deceased left a position of safety and put himself directly in the path of the approaching truck. This evidence was sufficient to support the conclusion of the trial court. Under these circumstances no duty was imposed upon the driver of the truck to assume that deceased would suddenly expose himself to imminent peril. On the contrary, he had a right to conclude that he would not recklessly move directly in front of the approaching machine. [Citing cases.]’ ”

In stating the rule applicable in determining whether the injured party is sui juris, nearly all of the authorities mention age as being one of the factors. But age is only one of the probative facts. Todd v. Orcutt, supra. The particular act being done is at all times one of the circumstances. In Nicolosi v. Clark, 169 Cal. 746, 147 P. 971, L.R.A.1915F, 638, a boy aged ten was engaged in a peculation of dynamite caps. The fact appeared as an allegation of his complaint. The trial court held that his act was contributory negligence as a matter of law and sustained a demurrer. That ruling was affirmed on appeal. Raggio v. Mallory, 10 Cal.2d 723, 76 P.2d 660, involved the fact of a minor boy twelve years of age stepping backwards in front of an automobile approaching from one side. The jury returned a verdict against him. On appeal the court, after stating the facts, held that the boy was guilty of contributory negligence. Whalen v. Streshley, 205 Cal. 78, 269 P. 928, 60 A.L.R. 445, involved the act of a boy about sixteen being injured in riding an unbroken mule. The defendant contended that he was guilty of contributory negligence. But the jury brought in a verdict in favor of the plaintiff. On appeal the judgment was reversed, holding that the plaintiff was guilty of contributory negligence as a matter of law. In Bolar v. Maxwell Hardware Co., 205 Cal. 396, 271 P. 97, 60 A.L.R. 429, the defendant was charged with having wrongfully sold to a minor a quantity of powder. The plaintiff was about fifteen years old. Having stated the facts, on page 398, of 205 Cal., on page 99 of 271 P., 60 A.L.R. 429, the court said: “We can discern no ground whatever upon which minds could differ for an instant as to plaintiff's own patent negligence in causing the explosion which produced his injuries. If this is not a case of contributory negligence as a matter of law, then that rule cannot be held applicable in any case to a minor.” Accordingly the court reversed the judgment in favor of the plaintiff and ordered the trial court to enter judgment in favor of the defendant.

The plaintiff speaks of the gymnasium building as constituting a “blind wall” obscuring her view of the northern portion of the vehicular road. But the accident did not occur north of the building. It occurred on the east side. The truck had turned the northern corner and the plaintiff testified “We just headed for each other.” Apparently in excuse for her failure to use due care, the plaintiff testified she could see where she was going. By that expression she meant one of two things. If she meant she could see where she was stepping, that fact standing alone is not helpful. It does not in the least imply that she could see other persons or vehicles using the roadway. If she meant she could see the entire roadway, including the truck, and nevertheless she ran forward into the side door, that fact did not constitute an excuse for her conduct but was condemnatory thereof.

We conclude, therefore, that the plaintiff was guilty of contributory negligence as a matter of law. It follows that the trial court erred in denying the defendant's motion that the jury be directed to bring in a verdict in its favor.

Appeal of Oakland Scavenger Company, Albert Santucci and Oresti Santucci.

These defendants also claim the plaintiff was guilty of contributory negligence as a matter of law and we think their contention should also be sustained. In addition to what has been said above the following matters are appropriate. Section 562 of the Vehicle Code, St.1935, p. 188, provides as follows: “Crossing at Other Than Crosswalks. (a) Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway.” So far as we have noted no oral evidence was introduced regarding any crosswalk being marked. Plaintiff's exhibits 2 and 5 purport to show the markings on the school grounds. Plaintiff's exhibit 2 shows that the court and the roads were marked by guard posts. There was no other evidence regarding the markings. As the plaintiff ran forward to cross the road it was therefore her duty to yield the right of way to all vehicles upon the roadway. She did not do so but ran into the side of the truck that was then using the roadway. A similar set of facts was before the court in the case entitled Chase v. Thomas, 7 Cal.App.2d 440, 46 P.2d 200. On page 443 of 7 Cal.App.2d, on page 201 of 46 P.2d the court said: “At that point it was plaintiff's duty to yield the right of way to passing vehicles, under the provisions of subdivision (c), section 131 1/212, California Vehicle Act. (St.1923, c. 266, p. 517, as added by St.1931, c. 1026, p. 2127). Plaintiff had no right to assume that drivers of such vehicles would slow down in order to give way to him. He was under the positive duty, under the provisions of the statute, to yield the right of way to others. He violated this statutory provision. Instead of allowing the automobile to pass in front of him, he stepped directly in front of it. The driver of the car was afforded no opportunity to stop after plaintiff stepped into the way. These acts upon plaintiff's part, being a violation of the provisions of the statute in that plaintiff instead of yielding the right of way claimed it for himself, constituted negligence per se. 19 Cal.Jur. 632. * The most that plaintiff can reasonably claim in his own favor is that he looked directly toward the defendants' car, with unobstructed vision, in broad daylight, and failed to see it, although it was but a short distance away from him. To look in such a fashion and fail to see what is in plain sight is to look without a reasonable degree of care, and if plaintiff's looking was done in such a negligent manner he may as well not have looked at all. He was not confused, nor was his attention diverted from the matter of ascertaining whether automobiles were approaching from the west. There was no reason why he could not have made careful observation of the street toward the west from a point of safety. Viewed either as a violation of defendant driver's statutory right of way or as the act of one who deliberately steps from a place of safety into a place of danger without giving heed to the possible consequences of his act, plaintiff's conduct was negligent. This negligence proximately contributed to the accident. Had he not violated the law or had he used ordinary care for his own safety, the accident would not have happened. His negligence therefore bars his recovery.” Genola v. Barnett, 14 Cal.2d 217, 221–222, 93 P.2d 109.

These defendants did not move for judgment notwithstanding the verdict. However they did make a motion that a verdict be directed in their favor. That motion was denied and they appealed from the judgment. It follows that this court, when it appears from the whole evidence that a verdict should have been so directed by the trial court, may order a judgment notwithstanding the verdict. Code Civ.Proc., § 629.

It is therefore ordered that the judgment be reversed as to each defendant and that a judgment in favor of all of the defendants notwithstanding the verdict be entered.

STURTEVANT, Justice.

We concur: NOURSE, P.J.; SPENCE, J.