Learn About the Law
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
HINE v. LEPPARD et al.*
Plaintiff had judgment for personal injuries and the value of his automobile. The defendants' principal point on appeal is that the evidence shows that plaintiff was guilty of contributory negligence as a matter of law.
The accident sued upon resulted from an automobile which plaintiff was driving being driven into the rear end of a truck owned by one defendant and being operated by the other. The collision occurred between 2 and 3 o'clock in the morning on a straight paved highway 20 feet wide 25 or 30 miles north of Brawley. Though dark at the time of the accident, the atmosphere was clear.
The highway was slightly up grade in the direction in which the truck carrying a load of lettuce was traveling. Shortly before it reached the scene of the accident, the vacuum tank went dry and the engine began to die. The driver made no effort to pull off to the side of the highway, but stopped on the paved portion with the right-hand wheels approximately 2 feet from the right-hand edge of the pavement. He then got off the truck to get some gasoline from the reservoir tank, and while on the ground looked to the rear and observed the plaintiff's car approaching. According to his testimony, all of the lights on the truck were lighted at that time. He made no effort to warn the driver of the oncoming car, which crashed into the stalled truck. The impact drove the truck forward 3 or 4 feet, and both vehicles caught fire.
Plaintiff testified that just before the accident occurred he was traveling between 35 and 40 miles per hour. He saw a car approaching at a distance which he estimated to be one-quarter of a mile, and dimmed his lights, or, to describe it more correctly, changed their focus so that the rays were lowered. At that time he was 200 feet from the truck with which he collided, and the three vehicles were the only ones in the immediate vicinity. With the changed focus of the lights he could see 50 feet ahead of his car, and he continued to drive at the same rate of speed.
Further relating what occurred, he said that suddenly an object loomed up in front which at first seemed to be a pile of rocks or a house on the side of the road; that he was 40 feet away when he first noticed it; that he was not sure in the few seconds that followed what it was, until his lights “took it in full”; then he realized it was something that was on the highway. He applied both foot and emergency brakes, but could not avoid the collision.
The driver of the on-coming car stated that he saw the truck burst into flame when he “was about a half a mile or so” from it. Whatever the exact distance, the accident did not occur when this car and plaintiff's car were passing, or even closely approaching. He testified that he did not see any light on the truck, and the driver of the car coming from the opposite direction testified that the headlights of the truck were not burning as he approached it. This testimony was in direct conflict with that of the truck driver, who testified that all of the lights on the truck were lighted at the time of the accident. The driver explained the mechanism of the lights was such that none could burn unless all were lighted; if the headlights of the truck were lighted, the tail-light was lighted. However, the condition of the tail-light immediately before the accident was a matter of dispute, and there is ample evidence to support the finding of the trial court that the truck was not lighted at the time of the accident.
Under this evidence, a court cannot say that the plaintiff was guilty of contributory negligence as a matter of law. The accident may have been caused by the failure of the truck to display a warning light to the rear, rather than by the shortened focus of the headlights on the plaintiff's automobile. The California Vehicle Act (Deering's Gen. Laws [1931 Ed.] Act 5128, § 106) required the truck to “carry at the rear a lighted lamp exhibiting a red light plainly visible under normal atmospheric conditions for a distance of five hundred feet toward the rear. * * *” Had the truck displayed such a light, the plaintiff might have seen it in time to have avoided the collision. It was not necessary for him to have stopped. Had he seen the truck in time, he could have gone around it. The issue of contributory negligence was therefore one of fact and not of law.
As was pointed out in Gammon v. Wales, 115 Cal. App. 133, 300 P. 988, 989: “The law is well settled that the question of contributory negligence, like that of negligence, is a question for the jury, and only when the facts are clear and undisputed, and when no other inference than that of negligence or contributory negligence can be drawn from such facts, is the court authorized to withdraw the question from the consideration of the jury.” That also was a case where an automobile collided with a truck and the court held: “The only possible theory upon which contributory negligence might be charged against plaintiff would be that he should have, as a reasonable person, seen, by means of the lights of his own car, the parked truck in the road ahead of him in time to have avoided the collision. This, of course, as we have already stated, was a question of fact to be submitted to the jury, under proper instructions, and is in no sense a question of law, as urged by defendants. * * * In Philadelphia & R. Ry. Co. v. Dillon, 1 W. W. Harr. ([31] Del.) 247, 114 A. 62, 64, 15 A. L. R. 894, it is said: ‘A traveler on a highway by day or night may expect that it will not be obstructed unlawfully or in such manner as to cause him injury while he himself is in the exercise of due and reasonable care, and what is such care depends on the circumstances of each case.”’ See, also, Smarda v. Fruit Growers' Supply Co. (Cal. App.) 36 P. (2d) 701.
Appellants assert that the plaintiff had no right to assume that the road was clear. The duty of an automobile driver in this regard is that he must “‘anticipate that he may meet persons at any point of the street, and he must, in order to avoid a charge of negligence, keep a proper lookout for them and keep his machine under such control as will enable him to avoid a collision with another person using proper care and caution, and if the situation requires he must slow up and stop.’ Reaugh v. Cudahy Packing Co., 189 Cal. 335, 340, 208 P. 125, 127.” Rush v. Lagomarsino, 196 Cal. 308, 317, 237 P. 1066, 1069.
Those whom he must anticipate meeting are, it will be noticed, persons using proper care and caution. “While himself exercising ordinary care, he had the right to presume that the street in front of him would not be obstructed unlawfully or in such manner as to cause him injury.” Smyth v. Harris & Devine (Cal. App.) 38 P.(2d) 862, 865. The driver of a stalled truck on a highway who allows it to remain there without lights not only fails to use proper care and caution, but is also violating California Vehicle Act, § 136, supra, if the vehicle is not disabled. Whether or not the driver could have run the truck off of the highway before it stopped was a question of fact which was decided adversely to the defendants, and there is evidence to support the findings of the trial court.
The judgment is affirmed.
EDMONDS, Justice pro tem.
We concur: CONREY, P. J.; HOUSER, J.
A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.
Docket No: Civ. 8937.
Decided: March 06, 1935
Court: District Court of Appeal, Second District, Division 1, California.
Search our directory by legal issue
Enter information in one or both fields (Required)
Harness the power of our directory with your own profile. Select the button below to sign up.
Learn more about FindLaw’s newsletters, including our terms of use and privacy policy.
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
Search our directory by legal issue
Enter information in one or both fields (Required)