SPECK v. SARVER (1940)

The three plaintiffs had a judgment on a verdict for damages for injuries arising out of an automobile collision. The record of the testimony detailing the circumstances of the collision contains the usual conflict among the various witnesses, but it is not necessary to discuss the evidence as a whole, and since we confine our opinion to the propriety of one of the instructions, we will assume that the evidence of defendants' negligence would have been sufficient to sustain a verdict against them if the error in this instruction had not occurred.

The defendants were driving an automobile northerly upon Canyon road near the limits of Redwood City at the same time that the plaintiff, Matthew Speck, was driving a car southerly upon the same road; the other two plaintiffs being his passengers. As the plaintiffs approached a curve in the road they noticed defendants' car approaching to the left or west of the imaginary center line of the highway. At that point the macadam surface of the highway was about 17 feet wide; it had no lanes and no center line was marked on it for traffic; and on the easterly side of the road there was a bank running upward, on the westerly side a slope going down. The shoulder on the east side was not more than one foot wide; the shoulder on the west side was somewhat wider and was covered with gravel or sand. When the plaintiffs observed defendants' car approaching, plaintiffs were traveling on the right or westerly side of the highway. At some point thereafter the plaintiff driver turned his car to the left so that the two machines met head-on approximately in the center of the road.

Taking the testimony of the plaintiffs alone, the record discloses that in his opening statement to the jury their counsel stated that the plaintiff driver was afraid of getting too far off the westerly side of the highway, that the two cars made a head-on collision “which was approximately in the center of the curve and approximately in the center of the road”. The plaintiff driver, when a witness on his own behalf, testified that when the cars came into collision the westerly rear end of his car stood about three feet from the westerly edge of the macadam pavement, and that the front end stood about five feet from that point. Upon cross-examination in further explanation of his actions in the operation of his car this plaintiff gave the following testimony:

“Q. Now, just before the collision, did you turn your car? A. Yes, I turned my car in toward the bank slightly.

“Q. In toward the other automobile? A. In toward my east.”

In endeavoring to further explain the position of his car after the accident he testified: “Well, as I took my little girl out of the car, I took her from the door over to the bank and I looked down on the road and I saw there was room enough there for a car to pass easily, right there. Q. Yes? A. Right after the accident.”

He testified that the day before his testimony was given he “stepped off” the car which he had been driving at the time of the collision and found it to be thirteen feet long, that defendants' car was about fourteen feet long and both were about six feet wide, also that after the collision the car which he had been driving was moved “about a foot” toward the easterly bank and that thereafter other automobiles including an ambulance were able to pass between his car and the westerly edge. He further testified under examination by his own counsel that on the day following the accident he went to the place of collision to observe skid marks made on the highway by defendants' car at the time of the collision. In this connection he stated: “The following day I noticed the skid marks were about six feet from the bank; the one to the east was six feet from the east edge of the pavement, six feet over, the first one, and to the west of that approximately five feet, was another skid mark. In other words, it was about eleven feet from the bank to the west skid mark.”

In reference to the operation of defendants' car this same plaintiff still testifying on his own behalf gave the following answers to the following questions:

“Q. What portion of the road was he traveling on? A. When I first saw him the center of his car was over the center line, the imaginary center line, what I consider the center line of the road.

“Q. Did he change the course of his car at all? A. Yes, he turned his car over to the west, to my side of the road.

“Q. More to the outside of the curve, in other words? A. Yes.

“Q. Then what did he do? A. Well, he did not decrease his speed any, and at that point he turned inward sharply.”

Other witnesses called by plaintiffs testified that plaintiffs' car was traveling on the right or westerly half of the highway, but they did not state when their observation was made, or whether this continued up to the point of contact.

A simple mathematical calculation based on plaintiffs' own evidence is that when the cars came into collision both were headed easterly toward the inside bank of the highway, that the right front end of plaintiffs' car was five feet from the westerly edge of the pavement and that the left front end, being six feet further in, was eleven feet from the westerly edge of the pavement, that at the same time the left front end of defendants' car was approximately eleven feet westerly from the easterly edge of the pavement. The parties agree that this pavement was approximately seventeen feet wide or eight and one-half feet from each edge to the median line. Upon this evidence of the plaintiffs it is therefore patent that at the time of the collision the left front end of plaintiffs' car was two and one-half feet to the east of the median line, and the left front end of defendants' car was a little more than two and one-half feet west of that line. With this evidence all coming from the plaintiffs, the issue was put to the jury to determine whether the plaintiffs were guilty of contributory negligence proximately causing the injuries complained of. We will not discuss the evidence on the basis of its sufficiency or insufficiency or on the basis of whether it discloses contributory negligence as a matter of law; we will not discuss the propriety of the instruction complained of on the basis that it was improper to invoke a presumption of due care in the light of plaintiffs' evidence as this question is discussed in Ellison v. Lang Transportation Co., 12 Cal.2d 355, 84 P.2d 510; Westberg v. Willde, 14 Cal.2d 360, 94 P.2d 590, and similar cases. We refer to the fact that the evidence on that issue all comes from the plaintiffs as a basis of our opinion that the instruction complained of was prejudicial to the defendants.

This instruction, given at respondents' request, reads: “In the absence of evidence to the contrary, the law presumes that the plaintiffs did everything that reasonably prudent persons would have done under the circumstances for the protection of their safety. The presumption that plaintiffs were not guilty of contributory negligence is, in itself, a species of evidence which continues with the said plaintiffs throughout the trial of this action and unless and until overcome by evidence to the contrary. This presumption in favor of said plaintiffs must prevail until and unless it is overcome by satisfactory evidence to the contrary.” Respondents defend the instruction on the authority of Ellison v. Lang Transportation Co., supra, 12 Cal.2d page 358, 84 P.2d 510; Westberg v. Willde, supra, 14 Cal.2d page 364, 94 P.2d 590; and Scott v. Sheedy, Cal.App., 102 P.2d 575. In the Ellison and Scott cases the approved instruction advised the jury that “the presumption is that a person takes ordinary care of his own concerns”. [12 Cal.2d 358, 84 P.2d 511] That approved in the Westberg case read “that every man obeys the law”. [14 Cal.2d 360, 94 P.2d 593.] Here the instruction complained of reads “the law presumes that the plaintiffs did everything that reasonably prudent persons would have done under the circumstances”. The rule of these cases, based upon numerous authorities cited therein, that a presumption is evidence which is sufficient to support a finding, is but a recognition of the express declarations of the Code of Civil Procedure, section 1957. But in this reference to the presumptions the provisions of sections 1962 and 1963 which specify the conclusive and disputable presumptions respectively cannot be overlooked. It will be noted that in the latter section some forty disputable presumptions are listed including (1) “that a person is innocent of crime or wrong”, and (4) “that a person takes ordinary care of his own concerns”. It should also be noted that in no part of the code section is to be found any presumption reading substantially like that complained of here.

We find that in many of the cases involving negligence and contributory negligence the appellate courts have loosely referred to a presumption “that plaintiff is not guilty of contributory negligence”. No such presumption is known to the code. What is meant in the decisions is that, because of presumption of “ordinary care”, the plaintiff is entitled to the inference that he is free from contributory negligence in the absence of proof to the contrary. To illustrate the distinction it is easy to picture a case where plaintiff has exercised “ordinary care” for his own concerns, but is negligent in relation to the “concerns” of others. Now if, under such circumstances, and because of some unforeseeable event, the plaintiff suffers injury, he may still be presumed to have used ordinary care for “his own concerns”, but could not be presumed free from negligence because he did not use ordinary care for the concerns of others.

Counsel have not cited any authority involving an instruction similar in substance or effect to that here complained of, and a reasonable search on our part has failed to disclose any. We have said that a presumption such as that mentioned in the instruction is not to be found in the code. We know of no rule which would justify us in adding to the code section what the legislature has omitted. The difference is not trivial. It is well illustrated by the facts of this case. If the plaintiff driver believed that he could best take care of “his own concerns” by turning his car into the middle of the road and take the collision “head-on” rather than in a contact on the side of his car, he would not be entitled to the presumption that he was obeying the law when he acted in direct violation of it, and he would not be entitled to the (misused) presumption that he “was not guilty of contributory negligence”. At the most he was entitled to the presumption of ordinary care with the question left to the jury to decide whether he was or was not guilty of negligence. Technically there is no presumption known to our law that a party is “not guilty of contributory negligence” and the giving of such instruction is error. Whether the error is prejudicial and reversible as such depends upon the circumstances of the particular case.

One error of the instruction is that it takes from the jury the determination of the very issue of fact which is most essential to the defense. Under proper instructions the jury might have determined that plaintiffs “did everything” that reasonably prudent persons would have done and might then have found that they were not guilty of contributory negligence, but, under the instruction complained of, the determination of both of these facts was taken from the jury, and it was told that the ultimate issue was “presumed” to be determined in favor of the plaintiffs. The question whether a party may purposely disobey an express statute in order to save himself from injury is not an easy one. We have been told by men in high station that they have frequently and deliberately disobeyed the law in the interest of the public welfare. The existence of an emergency which would justify such course is not a fixed matter of law or fact. If in the case at hand the turning of the vehicle into the middle of the highway so that the two cars would collide head-on was an act which “reasonably prudent persons would have done under the circumstances” it was within the province of the jury to determine whether such act proximately contributed to the injuries. But it was plain error to take from the jury the determination of the question whether such act was the act of a reasonably prudent person and to advise the jury that this was presumed in favor of plaintiffs when no such presumption is known to the law. The record discloses a case in which the jury might well have determined that both parties were to blame for the manner in which the two cars were operated, and we are unable to say that the error complained of was not prejudicial.

The judgment is reversed.

NOURSE, Presiding Justice.

I concur: STURTEVANT, J. I concur in the judgment: SPENCE, J.