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District Court of Appeal, Fourth District, California.


Civ. 3381.

Decided: July 16, 1945

Tripp, Callaway, Sampson & Dryden, of Los Angeles, for appellants. William M. Hawkes, of Escondido, and Monroe & McInnis, of San Diego, for respondent.

This is an appeal from a judgment for damages suffered by plaintiff in a collision between motor vehicles in the intersection of Citrus Drive and Bear Valley Road near Escondido in San Diego County on May 27, 1943. Plaintiff was seriously and permanently injured and his wife died as a result of the injuries suffered in the collision. No question is raised as to the amount of damages awarded.

Citrus Drive runs in a general northerly and southerly direction, and Bear Valley Road in a general easterly and westerly direction. Both are improved, hard surfaced country roads. The surfaced portion of Bear Valley Road, together with its shoulders, is 29 feet wide, while that of Citrus Drive is 32 feet wide. From several hundred feet south of Bear Valley Road, and thence northerly, the roadway of Citrus Drive descends a slight grade to a point about 60 feet south of Bear Valley Road where the grade flattens out. The grade of Bear Valley Road is approximately level on both sides of Citrus Drive. Drivers approaching the intersection from the east and south have a clear and unobstructed view in those directions of the rods for a distance of from five to six hundred feet from the intersection.

The accident happened at about 8 o'clock a.m. The morning was misty so that the roadways were damp but the mist was not sufficiently dense to affect visibility.

Defendant Paul Osteraas was employed by the Orange Glen School District to drive the school bus. He was driving west on Bear Valley Road on the business of his employer at the time of the accident. Plaintiff, accompanied by his wife, was driving his automobile north on Citrus Drive.

Plaintiff testified that he was driving at a speed of about 25 miles an hour; that when he was 75 or 100 feet south of the intersection he looked to his right and saw the school bus on Bear Valley Road about double that distance from the intersection; that he thought he had ‘worlds of time’ and proceeded on his way; that he did not see the bus again until just before the impact. A witness who lived on Citrus Drive just south of the intersection testified that he was driving his automobile from his garage to Citrus Drive and saw plaintiff's car pass him; that it was traveling between 25 and 30 miles an hour.

Osteraas testified that he was driving the bus west on Bear Valley Road at a speed of between 25 and 35 miles per hour; that when he was 195 feet east of the intersection he looked to his left and saw plaintiff's car about 300 feet south of the intersection proceeding north at a speed of between 35 and 45 miles an hour. In reply to the question of which vehicle entered the intersection first, he said: ‘I did.’ He admitted he realized that if neither vehicle slackened its speed the two would reach the intersection at approximately the same time; that he expected plaintiff to slacken his speed; that he did not again see plaintiff's car until it was too late to avoid the collision.

Considerable doubt may have been cast on this testimony of Osteraas by the testimony of four disinterested witnesses who heard him say after the accident that he did not see the Satterlee car until just before the collision; that he did not know how the accident happened as the first thing he knew the car was in front of him and he didn't have time to stop. He made other remarks of like impact. With this evidence before them the jurors might well have concluded that Osteraas did not see plaintiff's car when it was south of the intersection and that he did not look for traffic approaching on Citrus Drive until the school bus was too close to plaintiff's car to stop or otherwise avoid the collision. This amply sustains the implied finding of the jury of negligence on the part of Osteraas which was the proximate cause of the accident.

It is well established as a general rule that when a person looks and sees an approaching automobile and either misjudges its speed or the distance from him, the question of whether he should have looked again, in other words, his contributory negligence, is one of fact for the jury and not of law for the court. Shaw v. Robertson, 8 Cal.App.2d 520, 48 P.2d 128. Thus the implied finding of the jury that plaintiff was not guilty of contributory negligence in failing to further observe the approaching school bus may not be disturbed on appeal although a contrary finding, had one been made, would have had much evidentiary support.

As grounds for reversal defendants urge errors on the part of the trial judge in failing to give an instruction which they requested, and giving another instruction on his own motion.

The requested instruction first quoted section 550 of the Vehicle Code, St.1937, p. 619, which governs rights of way at intersections. It proceeded to inform the jury that a violation of these rules by plaintiff would constitute negligence and that if such violation contributed to the accident and injury plaintiff could not recover.

The trial judge gave the jury the substance of section 550 of the Vehicle Code but failed to inform that body that violation of law is negligence. This is the law and the failure to so instruct the jury, when requested to do so, was error.

The trial court gave the following instructions:

‘Now, with reference to this matter of right of way, I wish to tell you members of the jury that one may have the right of way and yet be negligent. One cannot rely on the right of way arbitrarily and force everyone else off the highway. He cannot barge in and claim the right of way over one whose aproach may be a menace to his safety or to the driver of that automobile's safety. The same test which I have given you originally applies in cases on intersections of highways, regardless of who was in the intersection first, and regardless of which automobile is on the right, if they approached at the same time; that is, that would a reasonably prudent person have done under the same or similar circumstances. That applies to both drivers colliding, whether they approach the intersection at the same time, enter it at the same time, or one entered the intersection first. In other words, these rules of law are not absolute. They must be considered in connection with what would a reasonably prudent person have done under the same or similar circumstances. * * *

‘I told you substantially of the rules of law and gave you what is called the basic speed law. I told you that when two automobiles enter an intersection at the same time the automobile or motor vehicle, whether bus or lighter vehicle, on the right, has the right of way, and if one motor vehicle enters an intersection before the other, that motor vehicle has the right of way, but that the right of way is not an absolute right to barge through ignoring any danger to the other motorist or to the barging motorist. One cannot arbitrarily rely on the right of way and expect to scatter from his path all of those who have lesser rights. In other words, the same general rule applies, and the test is: What would a reasonably prudent person do under the same or similar circumstances? It is possible that one who has the right of way may be negligent in the operation of that unquestioned right, under a certain set of circumstances.’

While there is much of common sense in the quoted instructions, they only state part of the law on the subject which they purport to cover and we do not regard them as in proper form. It remains for us to determine whether or not these errors were prejudicial. This requires a consideration of the evidence as to which vehicle entered the intersection first. If plaintiff entered the intersection first, then he had the right of way and Osteraas was the one who violated the law in trying to take that right of way from him. If plaintiff entered the intersection first, the failure of the trial judge to instruct the jury that violation of section 550 of the Vehicle Code was negligence could not have prejudiced defendants. The same is true of the two quoted instructions for they were directed against the driver of the vehicle which had the right of way.

It is admitted that the school bus approached the intersections on the right of plaintiff. This would not give the bus the right of way if plaintiff's vehicle entered the intersection first. (Sec. 550, Vehicle Code.)

It is established that the left front corner of the bus struck the right side of the automobile either over the right front wheel or opposite the right front door which would be from 4 to 6 feet to the rear of the front of the sedan. Osteraas applied the brakes on the school bus when it was several feet east of the intersection.

The point of impact was 1 1/212 feet north of the center line of Bear Valley Road produced across the intersection, and 5 feet east of the center line of Citrus Drive produced across the intersection. Thus at the moment of impact the front of the school bus had proceeded 11 feet into the intersection while the front of the automobile driven by plaintiff had traveled 20 or 22 feet into it. Thus the jury was fully justified in concluding, and probably did conclude, that plaintiff entered the intersection first and therefore had the right of way over the bus. Thus the refusal to give the requested instruction and the giving of the quoted instructions did not prejudice defendants.

In any event a careful study of the instructions given and refused, and of the entire record, has failed to show us that there has been a miscarriage of justice in this case. For this reason we cannot reverse the judgment because of the constitutional provisions. (Art. VI, Sec. 4 1/212, Const.)

The judgment is affirmed.

MARKS, Justice.

BARNARD, P. J., concurs.

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Docket No: Civ. 3381.

Decided: July 16, 1945

Court: District Court of Appeal, Fourth District, California.

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