LANE ET AL v. PACIFIC GREYHOUND LINES ET AL (1944)

This is an action for damages brought by the adult heirs of John Harold Lane who met his death in a collision between an automobile he was driving and a Greyhound bus. The collision occurred about 7:30 o'clock on the night of December 22, 1940, on San Pablo Avenue at the Tehama Street intersection, in El Cerrito, Contra Costa County. The deceased was travelling in a northerly direction; the bus was southbound, and the collision occurred as the deceased was making a left turn off San Pablo Avenue into Tehama Street. Plaintiffs alleged that the collision was caused by the negligent operation of the bus by the driver, James C. Perkins, while driving the bus within the scope of his employment; therefore under the doctrine of respondeat superior Pacific Greyhound Lines, a corporation, was joined with Perkins as party defendant to the action. The joint answer filed by the defendants admitted that Perkins was driving the bus in the course of his employment; but they denied the allegations of negligence on his part, and set up two special defenses. In the first it was charged generally that at the time of the accident the deceased was operating his car in a careless and negligent manner, and that such negligence was a proximate cause of the accident and proximately contributed thereto. In the second special defense it was alleged that at the time of the accident the deceased was making an unlawful left turn across the central dividing line of San Pablo Avenue and that such unlawful act was a proximate cause of the collision and contributed proximately thereto. This defense was based on the provisions of section 604 of the Vehicle Code of 1939, St.1939, p. 2199, in effect at the time of the accident, which declared: “It is unlawful for any person to drive any vehicle on any State highway which has been divided except to the right of the central dividing section, curb, separation or line or to drive any vehicle over, upon or across any such dividing section, curb, separation or line, or to make any left turn or semicircular or U turn on any such divided highway except through an opening in the dividing curb, section, separation or line.” A jury returned a unanimous verdict in favor of defendants; a motion for new trial was made and denied, and from the judgment entered on the verdict plaintiffs appeal.

Two main points are urged in support of the appeal. The first involves rulings and an instruction limiting the effect of certain testimony introduced by plaintiffs; and the second concerns the giving and refusing to give other instructions. No contention is made that the verdict is not supported by the evidence. However, a disposal of plaintiffs' first point requires a statement of facts.

Construing the evidence most strongly in favor of the defendants, and resolving all conflicts therein in support of the implied findings of the jury, the essential facts established thereby are as follows: San Pablo Avenue at the time and place of the accident ran in a northerly and southerly direction. It was a four lane state highway, approximately 81 feet wide between curbs, and was divided along the center by a painted double line. The north and south bound traffic lanes on each side of the double line were divided by a painted single line, those immediately east and west of the center double line being 10 feet 10 inches wide, the extreme westerly lane being 31 1/2 feet wide, and the extreme easterly lane being 26 feet 2 inches wide. Tehama Street was a short street, which entered and ended on the west side of San Pablo Avenue. It was 25.80 feet wide between curbs, without any sidewalks. The jury was instructed in accordance with the provisions of section 604 of the Vehicle Code, that if at the time of the accident “there was a central dividing line on San Pablo Avenue without any opening in said central dividing line or turning marker or markers at the intersection of Tehama, then under the law John Lane had no right to make or attempt to make a left hand turn into Tehama at said intersection”; and there is an abundance of evidence showing that there was a painted double central dividing line across the Tehama Street intersection, without any opening or any turning marker or markers at the intersection. The accident occurred on a Sunday night during a heavy rain storm. The vicinity of the intersection was extremely dark, the closest street light being on the northerly side of San Pablo Avenue approximately 250 feet from the Tehama Street intersection. A street traffic sign located 62 feet north of the line of Tehama Street on the west side of San Pablo Avenue marked the end of the 25 mile an hour zone, south of which it was lawful to drive up to 45 miles an hour. The El Cerrito police station was located on the east side of San Pablo Avenue about 500 feet north of Tehama Street.

The deceased lived on Tehama Street, about 116 feet from San Pablo Avenue. He was 66 years old, his eyesight was impaired, and his operator's license required him, while driving a car, to “wear adequate glasses.” On the night of the accident he was driving home alone from San Francisco in an Essex sedan. The bus was travelling at a speed of 23 miles an hour in the most westerly southbound lane. The headlights were burning, and there was a large illuminated sign across the top of the front of the bus displaying the name “Oakland.” When the deceased reached a point about 50 feet south of the southerly curb line of Tehama Street he turned suddenly to the left across the double dividing line in front of the oncoming bus to enter Tehama Street, and the impact occurred in the extreme west lane of San Pablo Avenue about 42 feet south of Tehama Street. The front end of the Essex was crushed and the deceased received injuries causing instant death.

Perkins had been a driver for Greyhound for two years, and had been on this particular run for six months immediately preceding the accident. On the night in question, on account of the heavy rains and the extremely wet pavement, he was travelling through the 25 mile an hour zone at 23 miles an hour and after passing into the 45 mile an hour zone he continued to travel at only 23 miles an hour. Approaching the Tehama Street intersection he saw at a distance of about a thousand feet the lights of a car approaching in the opposite direction on the east side of the highway, and as its lights came closer he saw that it was pursuing a course next to the double dividing line. Just about as the bus was crossing the Tehama Street intersection Perkins again saw the approaching car; it was about 50 feet away, and without slackening its speed it suddenly made a left turn across the double line into the pathway of the bus. Perkins instantly applied his brakes with full force, sounded his horn, and swerved sharply to the right toward the westerly curb of San Pablo Avenue, but was unable to avoid the collision.

The sudden swerving and stopping of the bus caused two girls to be thrown from the front right seat. Perkins helped them up and after learning that none of the passengers had been hurt, he requested all of them to remain seated in the bus. He then got out of the bus and went forward to see what had happened to the occupant of the other car; and upon reaching the window he saw the deceased slumped over the broken steering wheel. Perkins then stepped out on the highway, signalled a passing automobile and asked the occupant to drive to the police station and notify the police of the accident. He then took some flares from the rear of the bus to light and place in the highway to warn approaching automobiles. On account of the heavy rain he was unable to light the first two, but succeeded in lighting the third one. Several police officers, including the chief and a lieutenant, arrived within a few minutes after the accident, and placed more warning flares on the highway. Perkins then went to a nearby house to phone to his employer of the happening of the accident, after which he returned to the scene of the accident and assisted the police in making their investigation of the accident, and in taking photographs and measurements.

There was some testimony given by the two girls who were riding on the right front seat, aged 15 and 12 years, respectively, and by the brother of the younger girl, aged 15, who was riding immediately behind the girls, to the effect that the windshield wiper on the right hand side of the bus was not operating, and that at some time prior to the collision the driver had wiped the windshield on that side with a cloth; and the older girl and the boy testified that by looking through the window at objects they passed they estimated that the bus was travelling between 35 and 45 miles an hour immediately before the collision. In contradiction thereof, however, the driver testified that on account of the heavy rain storm he was watching the speedometer and driving “very cautiously” and kept the speed down to 23 miles an hour, even after passing the sign post into the 45 mile an hour zone. He also testified that the windshield wipers were working; and the record shows that when the police arrived they tested both windshield wipers and found that they were in good working order. Furthermore, the driver testified that he had no recollection of having wiped the windshield with a cloth; that the bus was provided with a windshield fan to prevent the windshield from “fogging.”

Some of plaintiffs' witnesses testified that pieces of broken glass were seen and found within the intersection, upon which testimony plaintiffs seem to base the theory that the collision occurred within the intersection. But such theory was clearly negatived, not only by the testimony of the driver, but by the testimony given by three police officers as to the physical conditions found to exist immediately after the accident and the next morning when they made further investigation. In this respect the record shows that the investigation conducted by them immediately following the accident extended over a period of an hour and a half; they took pictures with the aid of a synchronizer and flash lights, and also took various precise measurements with a steel tape; and with the aid of lighted flares and flash lights they carefully examined the surface of the highway. The police officers testified that the point of impact was 40 feet south of the south curb line of Tehama Street, in the extreme west southbound lane of San Pablo Avenue, and that no glass or debris of any kind was seen or found north of that point. The bus was about 35 feet long, and the police testified that the front end of the bus stopped 82 feet south of the south curb line of Tehama Street, the front right corner of the bus being 13 1/2 feet from the west curb line of San Pablo Avenue, and the left rear corner 4 feet west of the painted single line dividing the two southbound lanes. The bus was thus facing diagonally to the right or west, the direction in which it was turned by the driver when he saw the car of the deceased start to make the left turn.

On the morning following the accident, Cyrus K. Dam, son of plaintiffs' counsel and son–in–law of the deceased, visited the scene of the accident and took some pictures and measurements of the highway; and as a witness for plaintiffs he produced a map he had prepared from notes and measurements made by him that morning and during the several weeks following the accident. The map was not introduced in evidence, but it appears from the testimony given by the witness in connection therewith that it showed a painted single line across the Tehama Street intersection with small buttons thereon north and south of the intersection, which the witness claimed represented small painted circles indicating turning points between the circles. But he took no photographs showing any of the painted lines on San Pablo Avenue, nor any circles or buttons or markers of any kind at or near the Tehama Street intersection; and in contradiction of his testimony there is the testimony of three police officers, the driver, and other witnesses who testified positively that there was a double central dividing line running through the Tehama Street intersection and that there were no turning markers or circles or buttons of any kind therein at that intersection. Moreover, the photographs taken by the police on the day after the accident and those taken ten days later plainly show that there was a continuous double central dividing line running through the Tehama Street intersection with no markers or circles therein at that point.

Plaintiffs also introduced testimony to the effect that shortly after the accident the driver had stated that he did not see the other car until he struck it; but the driver positively denied ever having made any such statement, and his testimony that he did see the approaching car before the collision is strongly corroborated not only by the physical conditions found to exist immediately following the accident, but by the testimony of bus passengers to the effect that just before the impact occurred they realized something unusual was about to happen because the driver diverted the course of the bus suddenly to the right and applied the brakes with such force as to throw some of them forward in their seats.

From the foregoing narration it will be seen that the evidence, although conflicting on some points, is amply sufficient to support the verdict in favor of the defendants on any one or all of three grounds: First, that Perkins was not negligent in the operation of the bus; secondly, that the deceased was negligent in making a left turn over the central dividing line on San Pablo Avenue in violation of a state traffic law; and third, that aside from the question of the violation of the state traffic law he was negligent in attempting, under all the existing conditions and circumstances shown by the evidence, to make a left turn across San Pablo Avenue into Tehama Street.

At the time the testimony relating to Perkins' post–accident declarations was received the trial court ruled that they were binding on Perkins for all purposes but were not binding on the Greyhound; and Attorney Hoey, who conducted the trial on behalf of plaintiff (Attorney Dam being associated with him), signified his concurrence in the trial court's ruling and the jury was admonished and afterwards instructed in accordance with such ruling. On motion for new trial, however (Attorney Hoey having soon thereafter withdrawn as plaintiffs' attorney, Lane v. Pacific Greyhound Lines, 51 Cal.App.2d 705, 125 P.2d 510), Attorney Dam contended that Perkins' post–accident declarations were admissible as part of the res gestae and therefore binding also on the Greyhound; and on this appeal the same contention is urged as ground for reversal. There is no merit in the contention.

The particular facts relating thereto are as follows: As their first witness plaintiffs called the driver under the provisions of section 2055 of the Code of Civil Procedure, and he was interrogated by both sides as to the circumstances of the accident. In describing it he testified, as above stated, that prior to the collision he had seen the approach of the other car, first at a distance of about a thousand feet, and again when it was only 50 feet away from him. Thereafter plaintiffs called four witnesses, none of whom were bus passengers, and one being a child ten years old, who testified in substance that shortly after the accident Perkins had said that he did not see the other car until he struck it. The first of these witnesses, Floyd Olsen, lived with his wife and ten year old daughter on Tehama Street a short distance from San Pablo Avenue. He testified that upon hearing a crash he looked through the window and saw the light of a bus on San Pablo Avenue; that he then went outside, got in his car which was parked in front of his house, and drove to the scene of the accident; that upon his arrival Perkins was standing on the highway at the bus doorway. The examination of the witness then continued as follows: “Q. And what else did you observe there at that time and place? What did he do, if anything? A. Well, he was standing there, possibly–– he gave me the impression at least of being stunned or from shock and he was merely standing there and I looked at the other car or looked at the car ahead of the bus and then I looked at him–– to the driver of the bus and said–– Mr. Crowley [[[[attorney for defendants]: (interrupting) Now just a minute. What was said there is hearsay as far as the Greyhound is concerned. Mr. Hoey: Well, as far as the defendant Perkins was concerned he was there.” The court then said: “It would be binding on Mr. Perkins. It wouldn't be binding on the Greyhound.” And Attorney Hoey replied “No.” The witness then went on to say: “Well, I turned to the driver and said, ‘Where did the other car come from,’ and the driver stood there and said ‘I don't know where it came from. I didn't see him at all.’ ” Continuing, Olsen testified that at the driver's request he went back to his home, phoned for the police ambulance, and then returned to the scene of the accident; that after the police arrived he accompanied the driver up to his (Olsen's) home, so the driver could phone to his company; that after Perkins had phoned Mrs. Olsen asked him “where the other car was and he repeated again, ‘I didn't see the old man until I hit him,’ and this was about, oh, fifteen or twenty minutes, I should judge, after he had made the statement to me first.” Attorney Crowley objected to the question in response to which the last answer was given upon the ground that it called for “hearsay insofar as the Greyhound is concerned”; thereupon the court admonished the jury “that this conversation is not binding in any way upon the defendant Pacific Greyhound Lines and is only to be considered by you in connection with establishing any responsibility on the part of the defendant Perkins, any liability on the part of the defendant Perkins.” Afterwards Olsen's wife and his ten year old daughter testified to the same statement having been made by Perkins in their home. When Mrs. Olsen was asked the question “And what did he say at that time?” the following proceedings took place: “Mr. Crowley: (interrupting) That is objected to on behalf of the defendant Greyhound Lines, Your Honor, as hearsay, incompetent, irrelevant and immaterial, not binding on the defendant Greyhound. Mr. Dam: If Your Honor please, I have been thinking of that same objection over night and there are two propositions that I would like to state to Your Honor very briefly. Now whether or not a statement by the driver of the bus would be what is technically called in the law an admission against interest is one thing and whether or not any statement made by the driver of the bus would be evidence upon the question of whether or not he was guilty of negligence or as tending to show negligence on his part is another thing.” Mr. Crowley thereupon stated that it would save time if Mr. Dam would submit authorities on the point, and in response the court said: “Yes. I was going to suggest if you have any authorities you want to present to me get it to me during the noon hour and the other side will do the same and in the meantime I will make the same ruling I did yesterday and instruct the jury that any admissions made, or statements made by the driver of the automobile––of the bus, to Mrs. Olsen is not binding on the Pacific Greyhound Lines but is binding upon himself. Mr. Dam: That's merely as an admission against interests. The Court: Well, it is binding on him for all purposes and it is not binding on the Pacific Greyhound Lines. Now if you can show me any authority to the contrary, then I can instruct the jury to the contrary. Proceed.” Plaintiffs' fourth witness on this point, named Gilbert, heard the crash while visiting at a home on San Pablo Avenue about four blocks from the Tehama Street intersection; and he walked up to the scene of the accident. There were several people gathered around when he arrived; and he testified, subject to the same objection and ruling, that he heard the driver make a statement to the effect that he did not know where the other car came from.

At no time after the trial court invited Attorney Dam to submit authorities on the question as to whether the Perkins declarations were binding on the Greyhound, did counsel make any attempt to do so, nor did he thereafter intimate by way of any argument that the trial court's ruling was erroneous; therefore, in conformity with its ruling, and the concurrence therein by Attorney Hoey, the trial court, as part of its charge to the jury, stated: “Any evidence here about any statements, if any, made by the driver, Mr. Perkins, to anyone after the accident, was not admitted against, and is in no way related to or binding on the Pacific Greyhound Lines.”

On motion for new trial, however, Mr. Dam argued that Perkins' post–accident declarations were admissible as part of the res gestae, citing the case of Showalter v. Western Pacific R. Co., 16 Cal.2d 460, 106 P.2d 895, 897, decided in November, 1940, about nine months prior to the trial herein; and he now relies on that case as the principal authority in support of his contention that the trial court's ruling herein and the instruction given in conformity therewith were erroneous. In that case, under the facts, it was held in accordance with the trial court's ruling that the declarations were admissible as part of the res gestae. There is no similarity whatever between the facts of that case and those here presented; but applying the law as laid down in that case to the factual situation here presented definitely demonstrates that the trial court's ruling herein and the instruction given in conformity therewith should be sustained.

In the Showalter case the facts were these: About 9 o'clock at night, a railroad brakeman named Showalter was riding on top of a freight car in carrying out a switching movement, and a fellow brakeman named Parrott, who was a member of the same crew, heard Showalter “holler.” Parrott ran over to ascertain the trouble, and found Showalter lying across the tracks, between the trucks of the freight car, which had run over him, cutting off his legs, and soon afterwards he died from the effects of his injuries. In the action for damages brought by his widow, Parrott was asked if he had any conversation with the deceased, and he answered, “I did––as I remember, I asked him, ‘How in the world did it happen, Joe?’ ”––“He said, ‘I got knocked off.’ ” Being asked if that were all the conversation, Parrott replied, “Well, he said, ‘I am all done, both legs cut off.’ ” There was no other evidence in the case tending to show the cause of the accident, and it was held that the declarations were properly admitted by the trial court as part of the res gestae. In so holding the court went on to point out that there had been considerable confusion in this and other jurisdictions as to the rule of res gestae and that the rule which it deemed “to be correct was enunciated in the early case of People v. Vernon, 35 Cal. 49, 95 Am.Dec. 49––namely, that declarations which are voluntary and spontaneous and made so near the time of the principal act as to preclude the idea of deliberate design, though not precisely concurrent in point of time therewith, are regarded as contemporaneous and admissible.” Later on the court said: “* * * in our opinion the rule to be followed is that where a declaration is made under the immediate influence of the occurrence to which it relates and so near the time of that occurrence as to negative any probability of fabrication, said declaration is admissible.” And so in the present case, if immediately following the impact the driver had voluntarily and spontaneously made the declarations attributed to him, there would have been some legal ground upon which it could have been held that under the rule of the Showalter case the declarations were admissible as part of the res gestae. But those are not the facts. As already pointed out, following the impact the driver first gave aid to the two girls who had fallen from their seats; he then took the precaution to ascertain whether any of his passengers had been injured, and requested them to remain seated in the bus; thereupon he got out of the bus, went forward and inspected the crushed car, then went out on the highway and flagged a passing motorist and sent him for police aid, following which he secured and lighted the flares and placed them on the highway. It was after all these things had been done that Olsen claims to have had the conversation with the driver; and the second and third declarations which it is claimed were made to the other parties were made at least 20 minutes after the first one was made to Olsen––after the driver had walked up to Olsen's house and telephoned to his employer, and returned to the scene of the collision. Admittedly the determination of the question of whether the declarations constitute part of the res gestae does not depend on what was said, but on the circumstances under which and when and where the declarations are made. If admissible it makes no difference whether they are in favor of or against the party making them; and it is quite certain that if here, under identical circumstances, the driver had made declarations in his favor, and sought to prove them by the parties to whom they were made, in support of his case, they would have been excluded as self–serving and not part of the res gestae.

Furthermore, the Showalter case holds that while heretofore the practice in this state has been to deny any discretion in the trial court in determining the admissibility of alleged res gestae statements, some discretion must necessarily be allowed the court under the doctrine there laid down. And in the present case, on account of the many things that happened between the time of the impact and the conversation Olsen claims to have had with the driver, it clearly would be unreasonable to hold as a matter of law that the trial court's ruling limiting the effect of the declarations constituted an abuse of the exercise of its discretionary power. As said in the Showalter case, in quoting approvingly from Lloyd v. Boulevard Express, 79 Cal.App. 406, 249 P. 837, the trial court before whom the witness appears is better prepared to pass upon the evidence upon which the admissibility of such statements depends than is an appellate court, and its ruling should not be disturbed unless it has abused its discretion. This court adhered to the same doctrine in Siebel v. Shapiro, 58 Cal.App.2d 509, 137 P.2d 56.

In two of the cases cited with approval in the Showalter case it is said that questions as to the admissibility of statements as part of the res gestae depend upon whether such statements are the emanations of acts done, before the excitement usual to the accident has subsided, or are statements made after the excitement has subsided and the witness has time to calculate a policy to be pursued; and in an effort to bring the present case within the forepart of the above rule, plaintiffs call attention to the testimony given by Olsen to the effect that when he first saw the driver on the night of the accident he was given “the impression” that the driver was “stunned.” But the trial court, in the exercise of its discretionary power, was fully justified in concluding that all of the driver's activities following the happening of the accident and before Olsen arrived upon the scene, completely refuted any “impression” Olsen may have gained from looking at the driver while he stood on the highway in the dark and in a driving rain storm. Another factual difference between the present case and the Showalter case was this: There the declarant was dead, and his declaration furnished the only means of explaining the cause of the accident; whereas here there was ample evidence showing the circumstances of the accident, including the testimony of the declarant himself, who was fully cross–examined in behalf of the plaintiff. This factor also was one the trial court was entitled to consider in the exercise of its discretionary power in passing upon the question of whether the declarations should be admitted as part of the res gestae.

Two cases which are strikingly similar in their facts to the present case, and which support the trial court's ruling herein, are Bodholdt v. Garrett, 122 Cal.App. 566, 10 P.2d 533, and Shaver v. United Parcel Service, 90 Cal.App. 764, 266 P. 606. In the former case the plaintiffs were injured when struck by a truck belonging to the City of Oakland and driven by an employee named Garrett. Immediately after the accident happened one of plaintiffs' witnesses walked across the street to interview Garrett, and Garrett stated that the collision was due to a broken spring in the front portion of the truck. Plaintiffs claimed that the trial court erred in instructing the jury that this statement or admission of the driver was in no way binding on the City of Oakland. On appeal it was held otherwise, the court saying: “Statements of an employee not part of the res gestæ and not made spontaneously or as the result of excitement of the accident are not binding upon the employer. Shaver v. United Parcel Service, 90 Cal.App. 764, 770, 266 P. 606. While it is true that time is not the controlling element in the matter of res gestæ, still the statements must be, not only contemporaneous, but voluntary and the result of excitement, and made before a person has time to calculate and consider the form and substance of the explanation.”

In any event, plaintiffs have not shown that the trial court's ruling limiting the effect of the declarations operated to their prejudice. As above stated, liability was claimed against the Greyhound only under the doctrine of respondeat superior, and such liability depended entirely upon the issue of the negligence of the driver. Neither under the pleadings, the theory on which the case was tried, nor the evidence, could a verdict have been rendered for or against one of the defendants. If the driver was negligent and his negligence was the proximate cause of the accident, plaintiffs were entitled to a verdict against both defendants, but if the driver was not negligent plaintiffs were not entitled to a verdict against either. The jury was fully instructed accordingly, and it rendered a verdict in favor of the defendants, which necessarily was based on the finding that the driver was not negligent. Even assuming, therefore, that the driver's declarations should have been received in evidence as against both defendants, under the theory that they were part of the res gestae, the only evidentiary effect thereof would have been to raise a conflict on the issue of the driver's negligence; that is, as to whether he did or did not see the approaching car before he struck it; and such a conflict was created and already existed by reason of the admission of the declarations against the driver; and such conflict was resolved by the jury in favor of the driver by the rendition of a verdict in favor of the defendants.

Plaintiffs argue that because of the wording of the instructions hereinabove quoted, the jury was precluded from considering the effects of the declarations as against the Greyhound; but that is not true, because in any event the Greyhound would have been liable if its driver was found to be negligent, and the jury was afforded a full and unlimited right, under the instructions, to consider the effect of the declarations in determining the issue of the driver's negligence. The trial court therefore very properly submitted to the jury but two forms of verdict, one whereby it could find against both defendants, and the other whereby it could find in favor of both defendants.

Moreover, the questions as to the correctness of the trial court's ruling and the propriety of the instruction were restricted to the issue of the driver's negligence. They were in no way related to nor did they involve the determination of the two defenses of the contributory negligence of the deceased, which were raised by the answer and upon which, if all the essential elements thereof were established, defendants were entitled to a verdict even though the driver was found to be negligent; and as we have shown, the evidence is amply sufficient to sustain the verdict on either of these defenses.

On page 64 of appellants' opening brief is set out a quotation purporting to embody the remarks made by the trial court in ruling upon the motion for new trial. That quotation was not taken from the record and forms no part thereof. Attorney Dam sought to have the quotation inserted in the reporter's transcript at the time it was settled, but failed to accomplish that purpose. Thereafter he petitioned Division Two of this court, wherein the appeal was then pending, for an order to compel the trial court to insert those remarks in the transcript. In answer to that petition the trial judge filed an affidavit denying having made the remarks; and the petition was denied. Later a hearing before the Supreme Court was denied. Lane v. Pacific Greyhound Lines, 55 Cal.App.2d 525, 131 P.2d 53.

The objections made by plaintiffs to the other instructions are not sustainable. One of the objections is directed against an excerpt taken from a general instruction relating to presumptions and burden of proof. The entire instruction contains several paragraphs and covers two full pages of the reporter's transcript. The major portion of the general instruction embodies the substance of several separate instructions proposed by plaintiffs based on the rebuttable presumption declared by subdivision 4 of section 1963 of the Code of Civil Procedure “That a person takes ordinary care of his own concerns.” In one paragraph of the general instruction as given, language was used implying that the defendants as well as the deceased were entitled to the benefit of that rebuttable presumption, and in the following cases it is held that where a party in whose behalf the benefit of the presumption is claimed is alive and testifies fully in the case, the question of his negligence is to be determined on the evidence without regard to the presumption, and that in such cases an instruction based on said code section should not be given. Speck v. Sarver, 20 Cal.2d 585, 128 P.2d 16; Paulsen v. McDuffie, 4 Cal.2d 111, 47 P.2d 709. Reading the general instruction here as a whole, it would seem doubtful whether the language used could have been understood by the jury to mean anything more than that negligence is not presumed and that the party alleging it has the burden of establishing it. In any event, in the cases above cited, it is held that where the party claiming the benefit of the presumption has testified fully in the case, the giving of the instruction embodying said code section is not prejudicial.

Among the other instructions given embodying the law relating to the duty of a driver in making a left turn, the court properly gave an instruction based on sections 544 and 546 of the 1939 Vehicle Code, St.1935, pp. 185, 186, which instruction reads: “The appropriate signal for a left hand turn is that the hand and arm be extended horizontally beyond the side of the automobile continuously during the last fifty feet travelled by the automobile before turning.” Plaintiffs' objection thereto is that there was no evidence that the deceased did not comply with the foregoing provisions. The theory on which the defendants based their defenses of contributory negligence, and the testimony given by the driver in support of those defenses, justified the giving of the instruction.

The court refused to give an instruction proposed by plaintiffs to the effect that notwithstanding the driver was not exceeding the speed limit when the collision occurred, nevertheless if he was going too fast in the 25 mile an hour zone north of the intersection, such negligence would render him liable, since if he had been going at a slower rate in the 25 mile an hour zone the decedent would have cleared San Pablo Avenue before the bus struck him. The court was justified in refusing the instruction for two reasons: First, it was a formula instruction, and entirely omitted the proposition that the deceased himself must have been free from contributory negligence; secondly, it was clearly an argumentative instruction. The two remaining instructions proposed by plaintiffs, the refusal to give which is assigned as error, were fully covered by other instructions embodied in the court's charge.

After a complete review of the entire record, we are convinced that the action was fairly and carefully tried by the trial court, that its charge to the jury was fair, full and complete, that the evidence sustains the implied findings of the jury, and that no reasons have been shown which would justify the setting aside of the verdict.

The judgment is therefore affirmed.

I dissent.

The majority opinion holds that the trial court correctly ruled that the admissions of Perkins were not admissible against his employer, and, further, that even if they were admissible against the employer, the error in excluding them was not prejudicial. Both holdings, in my opinion, are clearly erroneous.

The majority opinion sets forth in detail the facts most favorable to defendants. There is no doubt that such evidence supports the verdict. The important point is that the evidence was conflicting and would support a verdict for either plaintiffs or defendants. It was plaintiffs' main theory at the trial that Perkins failed to observe decedent's car which admittedly had both headlights lit; that in the exercise of ordinary care he should have observed the oncoming car; that the driver was late on his schedule and was speeding to make up time; that the windshield wiper on the right of the windshield was not working; that just prior to the accident Perkins was engaged in wiping the windshield; that Perkins' negligence in failing to observe the Lane car was the sole proximate cause of the accident. Plaintiffs introduced ample evidence to support each step of this theory of the cause of the accident.

Much is said in the majority opinion about the exact point of impact, and about whether or not a left turn could lawfully be made into Tehama Street. Plaintiffs' witnesses definitely fixed the point of impact within the intersection. The evidence is most unsatisfactory as to whether at this intersection the highway was marked so as to permit a left turn. There is ample evidence to support an implied finding that it was so marked.

Under these circumstances it is obvious that any fair consideration of the question as to whether prejudice occurred as the result of any error must start with the admission that the evidence was of such a nature that it would support a verdict for either plaintiffs or defendants.

The main error complained of is that the trial court erroneously ruled that certain admissions of Perkins were not admissible against the Greyhound company. These admissions were vital to plaintiffs' case. They were introduced for the purpose of showing that Perkins was negligent in failing to keep a proper lookout immediately before the accident. To this end plaintiffs produced four witnesses––Richard Olsen, his wife, his ten–year–old daughter, and a high school teacher. They all testified that within a period varying from two to twenty minutes after the collision Perkins stated that he did not see the Lane car at all prior to the accident. This evidence not only impeached Perkins but was admissible on the basic question as to whether Perkins was negligent. If believed by the jury it necessarily would prove that Perkins was negligent.

These four witnesses were all disinterested. The Olsens lived on Tehama Street, and the high school teacher was visiting near the scene of the collision on the night in question. Mr. Olsen testified that he had never met or spoken with decedent; that he heard the crash and immediately left his home and proceeded to the scene of the accident; that when he arrived Perkins was standing beside the bus and “he gave me the impression at least of being stunned or from shock and he was merely standing there.” As Olsen started to testify as to what the driver then said, the following occurred:

“Mr. Crowley [counsel for defendants] (interrupting): Now just a minute. What was said there is hearsay as far as the Greyhound is concerned.

“Mr. Hoey: Well, as far as the defendant Perkins was concerned he was there.

“The Court: It would be binding on Mr. Perkins. It wouldn't be binding on the Greyhound.

“Mr. Hoey: No.

“A. [the witness]: Well, I turned to the driver and said, ‘Where did the other car come from,’ and the driver stood there and said, ‘I don't know where it came from. I didn't see him at all.’ ”

Olsen then asked the driver if he should call an ambulance. The driver said to get the police ambulance. Olsen then ran home. He estimated that he had been with the driver a minute to two minutes when he started to go back to his home. He called to his wife to telephone for the ambulance, got his flashlight and returned to the scene, using the flashlight to ward off traffic until the police arrived. The police arrived two or three minutes after he returned from telling Mrs. Olsen to telephone. When he had been there “probably ten or fifteen minutes” he returned to his home a second time, taking the driver with him upon his suggestion to the driver that he might want to telephone his employer. The driver telephoned in the kitchen with the door closed. The witness was asked if he heard the driver make any statement when he came out of the kitchen. At this point counsel for defendants objected: “Now we object to that as hearsay insofar as the Greyhound is concerned, your Honor.” The court then admonished the jurors as follows: “The jurors are instructed that this conversation is not binding in any way upon the defendant Pacific Greyhound Lines and is only to be considered by you in connection with establishing any responsibility on the part of the defendant Perkins, any liability on the part of the defendant Perkins.”

The testimony being thus limited, Olsen was then permitted to testify: “Mrs. Olsen asked him where the other car was and he repeated again, ‘I didn't see the old man until I hit him,’ and this was about, oh, fifteen or twenty minutes, I should judge, after he had made the statement to me first.”

On the following day of the trial, when Mrs. Olsen was on the stand and was asked if she had any conversation with Mr. Perkins, Crowley again stated his objection that anything Perkins said would not be binding on defendant Greyhound. At this point Mr. Dam, who was co–counsel for plaintiffs with Mr. Hoey, expressed his disagreement with the court's ruling that what Perkins said would not bind his employer. Without permitting Dam to pursue his arguments the court suggested that the attorneys present any authorities they had to him during the noon hour, and that in the meantime his ruling would stand. Mrs. Olsen then testified that after using the telephone Perkins said: “I do not know where the old man came from. I didn't see him until I struck him.” She estimated that his remarks were made about five or ten minutes after the accident.

Joyce Olsen went on the stand immediately after her mother, and testified that the bus driver said after telephoning, “I don't know where the old man came from.”

Francis Gilbert, Richmond High School teacher, testified that he was visiting near the intersection and that he went out after hearing the crash and heard the driver say to one of the men present, in substance, “I don't know where the car came from.” He estimated the time as within two or three minutes after he heard the crash. The police officers had not yet arrived. The witness was not acquainted with anyone connected with the accident. Twice during the brief examination of this witness the court reiterated the admonition that testimony as to statements of Perkins after the accident were not binding on Pacific Greyhound.

Perkins denied unequivocally that he had made statements such as those attributed to him by the Olsens and Gilbert. He testified that he stopped a southbound car and requested the driver to turn back and notify the police at the station between two and three blocks north on San Pablo. After the police arrived he asked of those then present if anyone had a telephone. Olsen offered his telephone. Perkins denied that the suggestion to use his telephone had come from Olsen. He said that he had no conversation with Mrs. Olsen but to apologize for tracking water into her house.

The defendants urge, and the majority opinion holds, that the court's rulings, excluding this testimony as against Greyhound, were correct, and that, even if erroneous, the error was not prejudicial because the jury returned a verdict in favor of Perkins against whom the evidence was admitted. This presents the two crucial points on this appeal: (1) was this evidence admissible against the Greyhound, and (2) if it was, were the rulings of the trial court to the contrary prejudicial? I am of the opinion that, under the most recent cases in this state, and according to the weight of authority elsewhere, these declarations of Perkins were clearly admissible against Greyhound, that the rulings of the trial court to the contrary were erroneous, and that such error was prejudicial to the plaintiffs.

The declarations of Perkins being in the nature of admissions were, of course, admittedly admissible as against him. Admissions of a party to an action are not within the hearsay rule and may be offered against such party. Lampton v. Davis Standard Bread Co., 48 Cal.App. 116, 191 P. 710; Shaver v. United Parcel Service, 90 Cal.App. 764, 266 P. 606; IV Wigmore on Evidence (3d ed.) p. 3, § 1048; 10 Cal.Jur. § 307, p. 1057. It is also the law that the admission of an agent of a party acting within the scope of his authority is in legal effect the admission of the principal and may be introduced against such principal. IV Wigmore, supra, p. 119, § 1078; 10 Cal.Jur. p. 1083, § 322. But where the admission is outside the scope of the agent's authority––and admissions of an agent made after an accident are generally held to be outside the employment––evidence thereof may not be introduced against the principal. Froeming v. Stockton Electric R. Co., 171 Cal. 401, 407, 153 P. 712, Ann.Cas.1918B, 408; Willard v. Valley Gas & Fuel Co., 171 Cal. 9, 16, 151 P. 286; Luman v. Golden Ancient Channel M. Co., 140 Cal. 700, 709, 74 P. 307. However, there are situations where the statements of the agent, although they may not be introduced as admissions of the principal made through his agent, are nevertheless admissible on a different theory. Where the remarks of the agent constitute part of what has probably been erroneously referred to as the res gestae, they may be introduced either for or against the principal. The basis of admissibility is not that the statements were made by an agent. Remarks of a bystander are equally admissible under proper circumstances.

Until recently most decisions in this state, including the two relied upon so heavily in the majority opinion, adhered to a very strict rule in determining what statements constituted part of the res gestae. It was necessary that the remarks be “contemporaneous” with the event. If made thereafter in the form of narrative explanation they were held not to be part of the res gestae and not admissible. But in Showalter v. Western Pacific R. Co., 16 Cal.2d 460, 106 P.2d 895, the Supreme Court brought this state into line with the great weight of American authority, and expressly overruled those cases which hold that admissibility is dependent on proximity in time of the declaration to the principal event or on continuation of the occurrence to which it relates. 16 Cal.2d at page 467, 106 P.2d at page 899. It was there held that if a statement is made under such circumstances of physical shock or nervous excitement as to preclude the likelihood of reflection and fabrication, it is admissible. The test is whether the declarant is still under the influence of the happening and his statement a spontaneous expression growing out of it and not the result of reason and reflection. 16 Cal.2d at page 470, 106 P.2d at page 901; see, also, VI Wigmore, supra, pp. 133–155, §§ 1746–1750; Am.Law Inst., Model Code of Evidence, Rule 512b. Wigmore finds that “there is in the judicial opinion of today something of an approach to uniformity” in the acceptance of this test. VI Wigmore, supra, p. 135, § 1747.

In the Showalter case the administratrix of a deceased brakeman brought an action for his wrongful death against his employer, Western Pacific R. R. Co., under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. The decedent's legs were severed when a car ran over him. A fellow brakeman was permitted to testify for plaintiff that he heard decedent “holler,” that he ran to him and asked, “How in the world did it happen, Joe?” [16 Cal.2d 460, 106 P.2d 897] The dying man replied, “I got knocked off. * * * I am all done, both legs cut off.” The court refused to hold that there was error in admitting the declarations.

It will be noted that in the Showalter case the trial court admitted into evidence under the spontaneous declaration exception what otherwise would have been inadmissible as a self–serving declaration. This holding was affirmed by the Supreme Court. That court held that the trial court has some discretion in determining whether the evidence falls within or without the spontaneous declaration exception, and that such discretion had not there been abused. That some such discretion exists seems to be the general rule. See VI Wigmore, supra, at p. 154 in § 1750. In the instant case the trial court ruled the evidence inadmissible against the employer. The majority opinion holds that such ruling was within the discretion of the trial court, and that even if the trial court could have admitted the evidence against the employer it was not an abuse of discretion to have refused to do so.

It is obvious that such discretion exists only where reasonable minds can reasonably differ as to whether the challenged remarks were evoked by the event or were the result of premeditation. There are situations where the remarks in question are so close to the event and so patently evoked by it without premeditation that it must be said, as a matter of law, that they are admissible. On the other hand, there are situations where the remarks are so far removed from the event and so obviously the result of premeditation that, as a matter of law, the evidence is not admissible. In between these extremes is the field in which the trial court has some discretion. In determining into which class the proffered evidence falls, the nature of the event, the nature of the declaration, the time elapsing between the event and the declaration, and perhaps other factors must be considered.

In the present case it seems too clear to require extended comment that the declarations were spontaneous declarations and, as a matter of law, should have been admitted against the employer. The accident was a severe one. After the accident Perkins appeared stunned and shocked. The time interval was from two to twenty minutes. Moreover, and of great if not of conclusive importance, the remarks to which the witnesses testified were against the interest of the declarant, rather than self–serving, as in the Showalter case. The usual controversy concerning this type of evidence involves remarks favorable to the interests of the declarant. Where a remark is offered that is obviously self–serving, a trial court must scrutinize it with care to be sure that the remark was in fact spontaneous and not the result of premeditation. But when the remark offered is against the interests of the declarant the possibility or probability of fabrication is virtually eliminated. The very fact that the remark is against the interest of the declarant demonstrates the probability that it was spontaneous. That circumstance alone gives it verity. Here the circumstances testified to by the witnesses were such as to exclude any other reasonable hypothesis than that the remarks were spontaneous and not premeditated. Premeditation would obviously have sealed the lips of Perkins.

The majority opinion suggests that the rule of the Showalter case is distinguishable in that there the testimony of the declarant was unavailable, since he was dead. Here the declarant testified at the trial. It is suggested that the exception to the hearsay rule here involved is applicable only where the witness is unavailable. It is quite clear that it is not a qualification of the spontaneous declaration exception that the death, absence or other unavailability of the witness must be shown. VI Wigmore, supra, p. 138, § 1748. The spontaneity of the utterance attaches to it a guarantee of trustworthiness. “The extrajudicial assertion being better than is likely to be obtained from the same person upon the stand, a necessity or expediency arises for resorting to it.” VI Wigmore, supra, p. 138, § 1748.

Consistent with its rulings made during the trial, the court instructed the jury that: “Any evidence here about any statements, if any, made by the driver, Mr. Perkins, to anyone after the accident was not admitted against, and is in no way related to or binding on the Pacific Greyhound Lines.”

Defendants vigorously urge, and the majority opinion seems to agree, that even if the trial court committed error in ruling that the declarations were admissible only as against Perkins and were not admissible against the employer, and in so instructing the jury, such errors were not and could not be prejudicial for the reason that such declarations were admitted against Perkins and the jury found in his favor. Had the jury been properly instructed, this argument would be unanswerable. Obviously, if the jury did find that even with this evidence admitted against him Perkins was not guilty of negligence, any error in excluding such evidence against the employer would be non–prejudicial. However, after reading the instructions, there is no way of knowing whether the verdict for Perkins was based upon the theory that Perkins was free from negligence or Lane was guilty of contributory negligence, or whether such verdict was based on the theory that Perkins could only be held if the Pacific Greyhound Lines was held. This anomalous situation is caused by the fact that several of the instructions are obviously conflicting. Because of the admissions made by Greyhound in its answer, the only issue involved was the liability of Perkins. From beginning to end the case was tried on the theory that Greyhound's liability turned on the liability of Perkins––if he was liable his employer was liable; if he was not liable his employer was not liable. Pursuant to this theory, early in its charge, the court instructed the jury that “any negligence on the part of defendant, Perkins, in the operation of a Greyhound stage, or bus, belonging to said corporation, * * * is also the negligence of said corporation, Pacific Greyhound Lines.” Then, just before concluding its charge, and in line with its reiterated rulings at the trial, the court gave the instruction quoted above that: “Any evidence here about any statements, if any, made by the driver, Mr. Perkins, to anyone after the accident, was not admitted against, and is in no way related to or binding on the Pacific Greyhound Lines.”

There cannot be any doubt as to the meaning of this last instruction. Its plain purport was to tell the jury that they could in no way consider these statements in determining the liability of Pacific Greyhound Lines; that if they deemed such statements necessary to find the driver negligent, and but for them would not find him negligent, they must exonerate the Pacific Greyhound Lines. As already pointed out, this instruction was erroneous. Then almost immediately following this instruction the court concluded its charge as follows:

“There have been prepared for your convenience and use, two forms of verdict which under the law it is possible for you to return in the case now on trial. These forms will be handed to you by the clerk when you retire. They have no significance in and of themselves and are not to be considered by you for any purpose other than as a convenience for your use, having been prepared only for the purpose of saving you labor when you have finally reached a verdict. When you have reached your verdict, your foreman will sign the verdict that you have found and it will then be your duty to return the same to the Court.

“If under the facts of the case and the instructions given you you desire to render a verdict for the plaintiffs you will use the form of verdict the body of which reads, ‘We, the jury in this case, find for the plaintiffs, and assess their damages against the defendants in the sum of blank dollars.’ You will fill in that blank the amount of damages that you award, have that verdict signed by your foreman and disregard the other form of verdict.

“On the other hand if under the facts and the instructions you desire to render a verdict for the defendants you will use the form of verdict the body of which reads, ‘We, the jury in this case, find for the defendants'; disregard the other form of verdict; have this form signed by your foreman and come into Court.”

There is no ambiguity about this last instruction. The jury was told in plain and unmistakable language that there were but two possible forms of verdict, one, a verdict in favor of plaintiffs and against both defendants, and the second, a verdict exonerating both defendants. The jury was told that it must bring in a verdict holding both defendants or exonerating both. But it had previously been instructed, erroneously, that evidence as to any statement made by Perkins was “not admitted against and is in no way related to or binding” on the Greyhound company. Thus, under this last mentioned instruction, the jury was told that if in order to hold Perkins the statements made by him had to be considered, the employer was not liable. Then, in the next breath, the jury was told, in effect, that either both defendants were liable or neither was liable. There is no way this court can know what went on in the jury room. The jury may have believed that Perkins was not negligent or that Lane was guilty of contributory negligence. If the jury so believed, the error in the instructions relating to the admissions was not prejudicial. But the jury may have believed that Perkins was negligent, basing this conclusion upon his admissions. Having been instructed that both defendants or neither must be held they would then have been faced with the situation where they believed Perkins was negligent, but they had been told that the evidence upon which that determination was based could not be considered and was in no way related to the liability of the Greyhound. Thus, under such a hypothesis, which is equally reasonable with the first suggested hypothesis, the jury's verdict might reasonably be based on the theory that the jury found that since, under the erroneous instruction, the employer could not be held, and since they had been told that both or neither must be held, that both must be exonerated. Thus, the jury's verdict for Perkins is not necessarily a determination that he was free from negligence or that decedent was guilty of contributory negligence. Equally reasonably it can be inferred that the verdict reflects the understanding of the jury, induced by the court's instructions, that it must hold both defendants or neither, and that although based on his admissions the jury thought Perkins was negligent, they must exonerate him because they could not hold the employer. Under such circumstances the erroneous rulings and instruction were obviously prejudicial. The legal problem presented is substantially identical to that presented in Bradley v. Rosenthal, 154 Cal. 420, 97 P. 875, 129 Am.St.Rep. 171, where the court, in a case where it was impossible to tell whether a verdict for the agent represented the jury's view that he was free from negligence, or that he should be exonerated by reason of an erroneous instruction, held the error prejudicial.

Defendants also urge that the error, if any, was not prejudicial by reason of the decision in Gorzeman v. Artz, 13 Cal.App.2d 660, 57 P.2d 550. That case held that even where declarations are made by an agent under such circumstances that they are not admissible as to the principal, nevertheless, where both principal and agent are sued in the same action, and no issue as to scope of employment is presented, the principal is liable if the agent is held on any evidence competent as to him. Why defendants cite this case is not apparent. If it correctly states the law it demonstrates to a certainty the error in the instruction relating to the admissions of Perkins, heretofore quoted. Moreover, the jury was told, preliminarily, that any negligence of the employee was negligence of his employer, but subsequently were told that the admission evidence was in no way related to Pacific Greyhound Lines. Thus, it was told, in effect, that if it deemed such evidence essential to establish negligence of the driver, it should not hold Greyhound Lines, and, further, that it should hold both defendants, or neither. It has already been pointed out that the statements of Perkins, if made, were admissible against his employer as spontaneous declarations, and that the court's rulings during the trial and instruction to the contrary were erroneous. Whether such rulings and instruction were prejudicial depends on whether the verdict in favor of the driver necessarily exonerates him of negligence. For reasons already stated, it is apparent that it does not, that it may represent the jury's view that it should hold both defendants, or neither, and since it could not hold the employer without resort to the admission evidence, it should hold neither defendant.

On the evidence it cannot be said, as a matter of law, that defendant driver was free from negligence, or that decedent was guilty of contributory negligence. Since the decedent was not alive to testify, the plaintiffs are aided by a presumption that he exercised due care for his safety, and this presumption is a species of evidence on which the jury may base a verdict of freedom from contributory negligence. Westberg v. Willde, 14 Cal.2d 360, 364, 94 P.2d 590. Under such circumstances, in my opinion, the judgment and order denying a new trial should be reversed.

It should be pointed out that plaintiffs are not precluded from urging error in the instruction that any evidence as to admissions of Perkins was in no way related to the liability of defendant Pacific Greyhound Lines because they did not submit a correct instruction. If a general instruction is given, which is correct as far as it goes, a party may not complain that a more specific or elaborate instruction was not given in the absence of a request therefor. But if an instruction is affirmatively erroneous a party is not precluded from asserting error because he did not request a proper instruction. Colgrove v. Lompoc, etc., Club, 51 Cal.App.2d 18, 124 P.2d 128; 24 Cal.Jur. p. 796, § 74, citing cases. Nor should it be held that plaintiffs acquiesced in the ruling of the court. Attorney Hoey did signify his agreement with the court's position when the matter first arose, but, as the record shows, on the following morning Attorney Dam, co–counsel with Hoey, withdrew this consent by urging that the ruling be reconsidered.

It was also clearly error to instruct the jury that there was a presumption that the bus driver exercised due care. Since the driver was alive, and testified fully as to the facts of the accident, his negligence, under the decisions, must be determined on the evidence without regard to any presumption. Speck v. Sarver, 20 Cal.2d 585, 587, 128 P.2d 16; Paulsen v. McDuffie, 4 Cal.2d 111, 119, 47 P.2d 709. Whether this error alone would compel a reversal need not be determined inasmuch as the errors above mentioned, in my opinion, compel such reversal.

For the foregoing reasons it is my opinion that the judgment should be reversed.

KNIGHT, Justice.

WARD, J., concurs.