JOHNSON v. GRIFFITH ET AL (1941)

From a judgment in favor of plaintiff after trial before the court without a jury in an action to recover damages for injuries resulting allegedly from an automobile accident defendants appeal.

Viewing the evidence most favorable to plaintiff (respondent), the essential facts are:

December 24, 1937, about 6:00 p. m. plaintiff was driving an old Essex coach in an easterly direction on Washington boulevard in Culver City near where said boulevard intersects with Main street. Plaintiff's automobile ran out of gasoline and he double–parked his car ten feet east of the intersection on Washington boulevard. To the right of plaintiff's car there was an automobile parked at the curb, there being approximately two or three feet between plaintiff's automobile as double–parked and the automobile parked at the curb.

Plaintiff went to a near–by gasoline station, obtained a can of gasoline, returned, filled his vacuum tank, then went to the rear of his car on the right–hand side, and poured gasoline into the tank. At about the same time defendant Ernest Griffith was proceeding in an easterly direction on Washington boulevard west of plaintiff's double–parked automobile. He noticed plaintiff's automobile, when he was approximately thirty feet in the rear thereof and traveling at a speed of about twenty miles per hour. He had not observed it prior to this time, for the reason that there was a car traveling in front of him which obstructed his view. At the point just indicated the car preceding him turned to the left and entered the middle lane of traffic to avoid hitting the double parked car of plaintiff. Defendant Ernest Griffith attempted to follow the same course as the car preceding him but was not able to do so, because another automobile traveling in the middle lane was at the time passing said defendant on the left, which compelled said defendant to swerve to the right, after which he again attempted to swerve to the left and get into the middle lane of traffic but in so doing the right front of the car which he was driving struck the left rear of plaintiff's car.

At the time of the collision plaintiff was standing between his car and the car parked at the curb. After the collision plaintiff Johnson was found lying between his car and the car parked at the curb, and subsequent examination disclosed that he had received serious head injuries. At the time of the accident there was an ordinance prohibiting double–parking in Culver City. Defendant Muriel Griffith was not present at the time of the accident but was made a defendant because of the fact that the car being operated by her codefendant was registered in her name.

Defendants urge, among others, as grounds for the reversal of the judgment that there was no evidence to show that the collision between the automobile driven by defendant Ernest Griffith and the car owned by plaintiff was the proximate cause of the injuries received by plaintiff.

This proposition is tenable. The law is established in California by an unbroken line of authorities that, in an action to recover damages resulting from the alleged negligence of another, the plaintiff has the burden of proving by a preponderance of evidence that his injuries were in fact caused by the negligent act of the defendant, and this burden is not sustained merely by proving that an injury occurred or an accident happened (Zulim v. Van Ness, 3 Cal.App.2d 82, 38 P.2d 820; Michener v. Hutton, 203 Cal. 604, 609, 265 P. 238, 59 A.L.R. 480; see, also, 19 Cal.Jur. [1925] 692, sec. 115).

In the instant case there was not one single iota of testimony connecting plaintiff's injuries with the accident. There was testimony that at the time the accident occurred plaintiff was standing between his car and a car parked at the curb and testimony that after the accident plaintiff was lying between the two cars. There was no testimony as to what caused him to fall, that either of the cars hit him, or in any way connecting him with the accident. For aught that appears from the record plaintiff may have had an epileptic seizure, have been hit by some unknown person, have fainted, or any one of numerous other causes may have brought about his falling and the attendant injuries which he received.

Therefore, applying the above stated rule of law, plaintiff failed to sustain the burden of proof by introducing evidence on a material issue, to wit, that the proximate cause of the accident was a negligent act of defendant Ernest Griffith.

For the foregoing reasons the judgment is reversed.

I concur. In my opinion the record discloses that the judgment should be reversed for reasons additional to those set forth in the majority opinion. In double–parking his car plaintiff was violating a city ordinance and the burden was upon him to establish facts showing that his action was justifiable in law. (Breaux v. Soares, 18 Cal.App.2d 489, 64 P.2d 146). The only reason given by plaintiff for double–parking his car was that he “ran out” of gasoline. The proposition is not open to argument that, in the absence of a showing of some misfortune such as leakage, it is carelessness to attempt to operate an automobile on a public highway with insufficient gasoline. Moreover, plaintiff, who was strong and in good health, should have pushed his car to a near–by driveway before he went for gasoline instead of leaving it for a period of ten minutes on a highway where the traffic was heavy. In my opinion plaintiff was guilty of negligence as a matter of law. Furthermore, the record is barren of evidence that defendant Ernest Griffith was guilty of any negligence whatever.

McCOMB, Justice.

I concur: MOORE, P. J.