HENSLEE v. FOX (1937)

This is an appeal taken by the defendants from a judgment against them in a personal injury case and from an order granting plaintiff a new trial on the sole issue of damages. It is the second appeal. Henslee v. Fox, 10 Cal.App.2d 202, 51 P.2d 1176.

The accident happened at about 10:30 a. m. on November 7, 1932. The place was in Berry street, between Third street and Fourth street, in San Francisco. Berry street runs east and west and Third and Fourth streets run north and south. Grocers Terminal Building extends along the entire southern side of Berry street and a railroad track extends along the entire northern side. The space between, 57 feet wide, is used as a street, although the fee is vested in the Southern Pacific Company. On the second trial the plaintiff produced a diagram which became known as Plaintiff's Exhibit 2 and a photostatic copy of which is inserted in the brief of the defendants. The original was drawn to a scale, eight feet to one inch. To what extent the size of the copy was decreased the record does not show. From the record some approximations can be made, but no measurements can be accurately computed. When the case went to the jury, the record showed that at the time of the accident there were lined up in Berry street on the south side nine different vehicles. Each stood at a right angle to the line of the street. The majority of them stood closely abutting the Grocers Terminal Building. One, about 125 feet west of the accident, was abutting the middle line of Berry street. That vehicle was marked H––2. Another stood about 75 feet east. It extended from the south line to the middle line of the street. Between those two another stood at a point almost opposite the truck being operated by Forrest, one of the defendants. On the north side of the street there were, including said truck, five different vehicles, all of which, except the truck, stood at right angles to and closely abutting the railroad track. The street is 57 feet wide measuring from the north line of the Grocers Terminal Building to the railroad track. The evidence was conflicting as to whether the defendants' truck was moving or at a standstill. But it was in a position northwest to southeast with its front wheels turned somewhat to the right with the rear end toward the railroad. It was about 25 feet long.

The plaintiff entered Berry street from Third street, drove down the space between the fronts of the trucks, and delivered a package at the premises occupied by Sussman–Wormser & Co. at the west end of the block. He then turned his motorcar around and started to return to Third street. He was driving a motorcycle with a sidecar attached. Including the extension of the handles, it was about as wide as an automobile. He testified that as he started east he was at once compelled to drive in the middle of Berry street or on his left to pass the vehicle H––2. As he continued farther he was in the middle or partly on his left hand side of the street. When he was 50 or 60 feet west of the defendants' truck, it was standing still. The plaintiff testified he continued on his course and that when he was 3 or 4 feet from the truck it moved forward, the front wheel ran over the left pedal of the motorcycle and broke his left leg.

The defendants contend the plaintiff was guilty of contributory negligence as a matter of law because he was driving in part, at least, on his left hand side of the street. That contention may not be sustained by the record before us. Section 122 of the California Vehicle Act (St.1923, p. 557, as amended by St.1931, p. 2124), omitting irrelevant parts, provides: “Upon all highways of sufficient width * * * the driver of a vehicle shall drive the same upon the right half of the highway * * * (b) In driving upon the right half of a highway the driver shall drive as closely as practicable to the right hand edge or curb of the highway.” From what has been said above, it is clear the plaintiff could not have driven near the curb. The diagram before us shows none of the other vehicles stood across the middle line of the street. It does not show the width of the unoccupied zone between the fronts of the parked vehicles. It does show such zone was of irregular widths. In particular it does not show the width of said zone in front of the defendants' truck. In attempting to go from the door in front of Sussman–Wormser & Co. out to Third street it is clear that any driver in that particular locality in the exercise of ordinary care would endeavor not to drive so close to the bumpers of the parked vehicles as to brush the same. Furthermore, said driver would be aware that any one of the parked vehicles might move forward at any moment. As to when it was or was not impracticable to drive nearer the right hand edge or curb became a question to be decided by a consideration of many different facts and circumstances. By its verdict the jury found the plaintiff was not negligent. Considering all of the facts we may not say the verdict was not supported by the evidence. Much less may we say the plaintiff was guilty of negligence as a matter of law.

As stated above, when the plaintiff was within 3 or 4 feet of the truck, he then saw it move. Before that it had been still. When he was in that place he testified the driver of the truck started forward and collided with the plaintiff's motorcycle. Immediately before the impact, under the uncontroverted evidence, the plaintiff had proceeded in the unoccupied zone and had traversed it for a distance of about 150 feet on the defendants' right going toward Third street. He says he was given no warning. Before the driver of the truck started to move he was bound to look. Our statute provides: “The driver of any vehicle upon a public highway before starting, turning or stopping such vehicle shall first see that such movement can be made in safety, and if it can not be made in safety, shall wait until it can be made in safety.” California Vehicle Act, § 130(a), St.1923, p. 558, as amended by St.1925, p. 413. The view of the driver of the truck was not obstructed. In fact, he testified he was looking at the movements of the plaintiff. However, he also claimed his truck was at a standstill and, without looking, the plaintiff ran into the parked truck. In support of the verdict we must assume the jury did not believe and did not accept as true the statement of the truck. driver, and found him guilty of negligence.

The defendants press the contention that Henslee v. Fox, supra, is the law of the case. However, they do not even claim the evidence on the second trial was the same as on the first trial. Their contention cannot therefore be sustained. Erlin v. National Union Fire Ins. Co., 7 Cal. 2d 547, 549, 61 P.2d 756.

Acting upon the request of the plaintiff, the trial court instructed the jury as follows:

“If you find from the evidence that the place where this accident occurred was not customarily used by the general public as a thoroughfare, then the provisions of the Motor Vehicle Act do not apply.

“However, in either event, the defendants are not absolved from the duty of exercising ordinary care for the safety of others. In determining whether or not ordinary care was exercised, you may ask yourselves this question: ‘Did the defendant Forrest exercise that degree of care and caution that would have been exercised by an ordinarily careful and prudent person acting in same or similar circumstances?”’

The defendants complain of the presence of the word “customarily.” They contend that the statute contains no such limitation. The statute is section 21 of the California Vehicle Act (St.1923, p. 519, as amended by St.1931, p. 2102). It does not contain the limitation complained of. But the error was not prejudicial. Conceding their criticism to be sound, the concession does not help the defendants. Taken as a whole, the instruction clearly stated that both the general law and the California Vehicle Act impose on the operators of vehicles the duty to exercise reasonable care not to injure others. Other instructions stated the same rule. Read as a whole, the charge of the court correctly stated the law on the subject.

The court in like manner gave another instruction: “If you find from the evidence in this case that the place where the accident occurred was a highway customarily used by the general public, and you further find that the driver of the truck in question started or turned his truck upon such highway at a time when the plaintiff might reasonably be affected by such movement, and failed or omitted to give a plainly visible signal to plaintiff of his intention to make such movement, then the driver of the truck was negligent. If such negligence, if any, was the sole proximate cause of plaintiff's injury, then your verdict must be in favor of the plaintiff without the necessity of further proof of negligence on the part of the defendants.” Defendants contend that as given it was a formula instruction and failed to state “and that the plaintiff was free from negligence.” That criticism is not well founded. The use of the word “sole” implied the limitation, the omission of which the defendants complain. When read in connection with the other instructions which were given, the instruction was not an incorrect statement of the law.

After the verdict had been recorded, each party separately made a motion for a new trial. The court denied the motion of the defendants, but granted the motion of the plaintiff “on the sole issue of damages on ground of insufficiency of evidence to justify the verdict.” From that order the defendants also appealed.

In support of the order of the trial court the plaintiff calls our attention to the facts that the verdict was for $5000; that, as an employee, his right to recover for loss of wages under the Workmen's Compensation, Insurance & Safety Act (St.1917, p. 831, as amended) amounted to $2,583; that he expended $2,053.31 for medical care; and that the verdict allowed him only the difference, $363.69, as compensation for pain, suffering, and permanent disability. The latter allowance the plaintiff asserts is wholly inadequate under the facts.

The defendants reply that the power to grant a new trial of part of the issues of a case is dependent upon the undoubted separability and distinctness of the issues and the absence of a resulting prejudice to the rights of the other party. Continuing, they claim that the facts in the instant case show the order should not have been made, and therefore it was an abuse of discretion to make it. They concede the rule in this state is as stated in Re Estate of Everts, 163 Cal. 449, at page 452, 125 P. 1058, 1059: “It is within the power of the trial court, where there is more than one issue of fact in a case, and such issues are distinct and separable in their nature, to order a new trial of one issue and refuse it as to the others. San Diego L. & T. Co. v. Neale, 78 Cal. [63] 64, 20 P. 372, 3 L.R.A. 83; Duff v. Duff, 101 Cal. [1] 4, 35 P. 437; Mountain, etc., Co. v. Bryan, 111 Cal. [36] 38, 43 P. 410.” However, they claim the facts of this case do not bring it within said rule. We think they do. As pointed out above, both the amount and the mode of calculation of the loss of wages, if allowed at all, is provided by statute. The medical outlays are not enumerated by statute, but are computed under well–settled rules. The amount to be allowed for pain, suffering, and permanent disability will involve many inquiries and the taking of expert evidence. Proof of that amount will not require the taking of a particle of evidence involving the manner of the breaking of the plaintiff's leg, that is, the facts of the accident. The new trial will be on matters wholly distinct and separable from the issues on which a new trial was denied. We see nothing in the nature of abuse of discretion in making the order.

The order and judgment complained of are affirmed.

STURTEVANT, Justice.

We concur: SPENCE, Acting P. J.; GRAY, Justice pro tem.