WHITFIELD v. DEBRINCAT (1941)

At about 8:15 p. m. on the evening of July 8, 1933, plaintiff was driving a light Buick automobile in a southerly direction on the Skyline boulevard in San Mateo county. The defendant Debrincat was driving a heavy Buick automobile northerly along said boulevard. At a point about two miles south of the boundary line between San Mateo county and San Francisco the two automobiles collided. To recover damages for injuries sustained in said collision the plaintiff commenced this action. The defendant answered and on the issues framed a trial was had. The verdict was in favor of the defendant. A motion for a new trial was granted. A second trial was had in May, 1935, and the verdict was in favor of the plaintiff. A motion for a new trial was granted and the order was affirmed on appeal. Whitfield v. Debrincat, 18 Cal.App.2d 730, 64 P.2d 960. A third trial was had in July, 1937, which resulted in favor of the defendant. A new trial was ordered and that order was affirmed on appeal. Whitfield v. De Brincat, 35 Cal.App.2d 476, 96 P.2d 156. A fourth trial was had in April, 1940, which resulted in a verdict of $14,000 in favor of the plaintiff. This appeal is from the judgment entered upon said verdict.

At the point where the accident occurred the plaintiff was driving uphill and the defendant was driving down–hill on a grade of about four and one–half per cent. Neither car was traveling faster than thirty miles per hour. Both cars had their lights turned on and each car was seen by the driver of the other at least one hundred feet distant. The roadway was paved and had a white stripe painted along its middle line. The course of the road was very crooked and at about the point of the collision the road described curves in the shape of the letter “S”.

Riding in the car with the plaintiff Whitfield was a guest, Madeline Trobock. Riding with the defendant was Joe Grima. Excepting those individuals there was no other eye–witness. There was not a particle of contention on the part of either of the litigants that any other person was responsible for the accident except the plaintiff and defendant. It was the contention of the plaintiff that the defendant was driving on his left–hand side of the road and in a space across the white line. On the other hand, it was the contention of the defendant that the plaintiff was driving on his left–hand side of the road and in a space on his left–hand side of the white line. These two conflicting theories were presented by the attorneys for the respective parties with meticulous care in their opening statements. The evidence introduced by the parties was hopelessly conflicting.

The defendant asked the trial court to give an instruction as follows: “You are instructed that the California Vehicle Act, in effect at the time of the accident complained of, provided that upon all highways of sufficient width, other than one–way highways, the driver of a vehicle shall drive the same upon the right half of the highway and as close to the right–hand edge or curb of such highways as is practicable, except when overtaking and passing other vehicles, in which event the overtaking vehicle may be driven on the left side of the highway, if 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 made completely without interfering with the safe operation of any vehicle approaching from the opposite direction; and provided that such overtaking vehicle shall return to the right–hand side of the highway before coming within one hundred feet of any vehicle approaching from the opposite direction, and in no event shall a driver drive to the left side of the center line when approaching the crest of a grade or upon a curve in the highway where the driver's view along the highway is obstructed, and if you find from the evidence that the plaintiff, Whitfield, failed to comply with said law, and that such failure proximately caused his injuries, then you are instructed that said plaintiff was guilty of negligence and cannot recover against the defendant.” (Italics ours.) The trial court struck out the portion we have italicized and then gave the instruction. The defendant contends the modification was error. We think it was. The portion stricken out was a correct statement of the law, it was of the gravamen of the defense, and it was not treated generally nor specifically in any of the other instructions.

The trial court, acting on the request of the plaintiff, gave an instruction as follows: “You are instructed that the plaintiff while in the operation of his automobile immediately prior to and at the time of the accident involved in this case, was not under the duty to exercise the utmost or highest degree of care. The only duty imposed upon plaintiff was that of exercising the care of an ordinarily prudent person acting under like circumstances, and if you should find from the evidence in this case that said plaintiff immediately prior to and at the time of the said accident, was conducting himself while in the operation of his automobile in the same manner that any other person of ordinary care and prudence, acting under like circumstances, would have conducted himself, then said plaintiff was not guilty of contributory negligence.” The defendant claims the court erred in giving it because the effect was to tell the jury that the plaintiff was bound to use only ordinary care even though he violated express provisions of the statute by not giving to defendant his one–half of the main traveled portion of the road as nearly as possible. California Vehicle Act, § 124, St.1923, p. 557, as amended by St.1931, p. 2125.

The defendant quotes the first sentence of the instruction last mentioned, given at the request of the plaintiff, and then the defendant complains because the trial court refused one of his instructions which, in part, was as follows: “You are instructed that the defendant Joe Debrincat was not required to use the highest degree of care in the operation of his automobile at the time and place of the accident.” The portion quoted from the instruction given at plaintiff's request appears to be a fair statement of the rule stated in section 113, subdivision (a) of the California Vehicle Act. But that rule was applicable to both drivers. Both drivers were therefore entitled to have their acts measured by the calls of said statute. It follows that the trial court erred in not giving the instruction asked by the defendant. The error was enhanced by the fact that the rule was applied to the plaintiff and denied as to the defendant. To that extent the latter did not have a fair trial.

Acting upon the request of the plaintiff the trial court instructed the jury as follows: “One who is himself exercising ordinary care has a right to assume, until the contrary becomes apparent, that all other persons using a street or highway will obey the law and use ordinary care.” But it refused to give defendant's requested instruction: “While it is the law that the plaintiff Albert Whitfield had a right to assume that all others, including the defendant, would exercise ordinary care and obey the rules of the road herein defined, he was not entitled to assume that others would exercise ordinary care if at the same time the plaintiff was acting in a negligent or careless manner or was himself violating any of said rules of the road.” As stated by the court in Varner v. Skov, 20 Cal.App.2d 232, 67 P.2d 123, if the first instruction was given the other one should also have been given.

The trial court instructed the jury: “Contributory negligence is defined as such an act or omission on the part of an injured party amounting to a want of ordinary care, as concurring or cooperating with the negligent act of a defendant, was the proximate cause of the injury complained of.” (Italics ours.) The defendant contends it was not a correct statement of the law. It was not. Morris v. Purity Sausage Co., 2 Cal.App.2d 536, 38 P.2d 193. It imposed more of a burden of proof than the law provided on the defendant. The error did not stop there. The court also instructed the jury: “Before the plaintiff can recover in this action it must first appear by a preponderance of evidence that the defendant was guilty of some act of negligence which contributed proximately to the accident.” (Italics ours.) It will be noticed that the first one in effect told the jury that contributory negligence, to be a defense, must show that the acts of the plaintiff were the sole cause of the accident and the other instruction, in effect, told the jury the defendant would be liable if his acts contributed although the acts of plaintiff also contributed to the accident. That is not the law and is prejudicial error. Gale v. Helmbacher Forge & Rolling Mills Co., 159 Mo.App. 639, 140 S.W. 77. In that case, 140 S.W. at page 81, the Court of Appeals of Missouri said: “There is evidence in the case tending to show negligence on the part of defendant and evidence tending to show contributory negligence on the part of the plaintiff, but no evidence whatever tending to show that there was any independent cause contributing to the injury. With the evidence in that state, it has been recently held by our Supreme Court to be reversible error to give an instruction using the words ‘contributed to cause the injury,’ for the reason that such an instruction is indefinite and inconsistent and liable to be very misleading and confusing to the average jury, either causing them to speculate as to unknown causes which might have contributed, with defendant's negligence, to cause plaintiff's injury, or to assume that plaintiff might recover if his injury was caused by his own negligence, contributed to by the negligence of the defendant. Hof v. [St. Louis] Transit Co., 213 Mo. 445, 111 S.W. 1166; Krehmeyer v. [St. Louis] Transit Co., 220 Mo. 639, 120 S.W. 78. Following these controlling authorities, this court condemned similar instructions in the following cases: Schmidt v. [St. Louis] Transit Co., 140 Mo.App. 182, 120 S.W. 96; Wilson v. [United] Railways Co., 142 Mo.App. 676, 121 S.W. 1083; Garrett v. Wabash Railroad Co., [159 Mo.App. 63], 139 S.W. 252 * * *. The reason for the ruling is fully discussed in those cases.”

That the errors recited above were highly prejudicial is shown by the physical facts shown by the evidence. As the result of the collision the left front wheel of the defendant's car was broken off and the left hub dropped onto, and commenced to scrape along the highway. The scraping was so violent that scars were made which could be seen months afterward. Those scars or ruts commenced on defendant's right–hand side of the road and followed to the north and west before the defendant could stop his car. Again the plaintiff's car showed that it was hit twice––once immediately behind the front fender and again at the rear end. It was at all times the contention of the defendant that shortly prior to the collision the plaintiff's car was well over the white line on plaintiff's left, that as the cars approached the plaintiff attempted to swerve to his right, that as he did so his car presented its side in front of defendant's car and while in that position the cars collided. The two indentations on the plaintiff's car at least tend to corroborate the defendant's explanation and if his theory is sound it follows that the acts of the plaintiff and not the acts of the defendant, were the proximate cause of the accident.

The defendant assigns some rulings on the admission or rejection of evidence and claims they were errors. He also earnestly contends that the verdict was excessive. In view of the conclusions we have reached above it is not necessary to discuss the latter assignments. But for the other errors hereinabove discussed the judgment is reversed.

STURTEVANT, Justice.

NOURSE, P. J., and SPENSE, J., concurred.