PEWITT v. RILEY (1945)

This is an appeal by the defendant, Gay, and the defendant and cross-complainant, Riley, from a judgment in favor of the plaintiff. The case arose out of a collision between a tractor and semi-trailer operated by the plaintiff and a truck and trailer owned by Riley which was being operated by Gay.

The collision occurred on July 22, 1943, about 2:25 a. m. on that portion of Highway 99, commonly known as the Ridge Route, at a point about 5 miles south of Gorman and opposite a filling station known as the Lemon. The highway runs in a northerly and southerly direction. Looking north from the Lemon it is straight for about 300 yeards, then a curve of about 20 degrees to the left begins. The paved portion of the highway is about 45 feet wide and has three traffic lanes which were clearly marked. It is slightly down grade to the south. The Lemon filling station is on the east side of the highway. There is a hard surfaced shoulder of sufficient width to permit the parking of a truck off the pavement on the west side opposite the filling station. The defendant, Gay, had been driving his truck and trailer, loaded with baled hay and weighing about 42,000 pounds, in a southerly direction. Desiring to obtain gasoline he stopped his equipment on the right-hand shoulder of the highway, alighted and walked across the road to the filling station for the purpose of requesting the driver of a northbound truck to move his equipment so that he, Gay, could drive up to the gas pumps. Defendant Gay returned to his equipment and proceeded to cross the highway with it to the filling station. He testified he did not see the plaintiff until he (Gay) was in the middle traffic lane crossing the highway. The plaintiff was traveling south. His equipment, loaded with apples, weighed about 62,000 pounds. According to plaintiff's testimony defendant Gay's equipment was ‘sitting still’ when he first saw it, about 300 yards away. Plaintiff blinked his lights and ‘determined to go by him.’ Plaintiff traveled about 50 yards when defendant Gay started moving. Plaintiff was then some 250 yards to the rear. ‘He [Gay] was going south and moving a little east’ which would be more toward or onto the paved portion of the highway. Plaintiff also described the situation by saying ‘it looked like he [Gay] was just going to go down along the highway.’ He also referred to defendant Gay's equipment as ‘easing along the shoulder’ and as ‘easing straight ahead.’ When plaintiff observed defendant Gay's equipment moving he blinked his lights again ‘because,’ he testified, ‘I had started to, or intended to pass him, to go past him as he was coming out * * *.’ Defendant Gay testified that he started to make his turn immediately upon starting his truck and trailer. Such equipment, 40 or 45 feet in length and loaded as this was, would ordinarily be turned gradually as a part of its forward movement. That such was the character of defendant Gay's turn is indicated by the following questions and answers: ‘Q. [By Mr. Arnold] Now, when you had started across there, or turned sufficiently so you could look out of your cab, did you look back to see whether there were any lights coming?

A. [By defendant Gay] Yes. * * *

‘Q. Now, after you had started, did you look back again to see whether there was any traffic coming around the bend? A. After I started moving forward, you mean?

‘Q. Yes. A. No, I looked south then to see if there was any traffic coming from that way.’

Plaintiff admits he did not sound his horn. He was traveling, according to the findings, at approximately 35 miles per hour. Defendant Gay was traveling about four miles per hour, according to his testimony, when he first saw the plaintiff.

The collision took place in front of the filling station and while defendant Gay's truck and trailer were crossing the highway. The photographs, taken before the equipment was disentangled, show that the front of plaintiff's equipment hit the left side of defendant Gay's truck near the rear and his trailer near the front. As a result of the impact the hay truck and trailer were bent, in plaintiff's words, ‘in a U-turn.’

Defendants' first contention is that plaintiff was guilty of negligence, as a matter of law, which proximately contributed to the collision, hence the judgment in plaintiff's favor cannot stand. This contention must be sustained.

It is unmistakably clear that plaintiff was overtaking defendant Gay and intended to pass him. Also, defendant Gay's equipment was ‘proceeding in the same direction’ as plaintiff's when it started to move. It is said in Moore v. Miller, 1942, 51 Cal.App.2d 674, at page 680, 125 P.2d 576, at page 579, that: ‘The lines of progress of two vehicles need not be exactly parallel or identical in order to bring them within the meaning of the phrase last quoted. It is sufficient if they are proceeding substantially in the same direction.’ The initial movement of defendant's equipment and the direction thereof was seen and observed by plaintiff. Section 528 of the Vehicle Code, St.1935, p. 182, provided as follows, at the time of this collision: ‘The following rules shall govern the overtaking and passing of vehicles proceeding in the same direction, subject to the limitations and exceptions hereinafter stated: * * * (b) The driver of a motor vehicle, when traveling outside of a business or residence district and under other conditions where necessary to insure safety, shall give audible warning before overtaking a vehicle proceeding in the same direction.’ Subdivision (b) above was deleted by Chap. 590, p. 2173, Stats.1943. Effective Aug. 4, 1943. The collision happened at a point ‘outside of a business or residence district.’ It was therefore the plain statutory duty of plaintiff to give ‘audible warning’ before overtaking defendant's equipment which was proceeding in the same direction. Plaintiff admittedly did not give any ‘audible warning.’ ‘Failure to obey the statute in this respect is, of course, negligence as a matter of law.’ Moore v. Miller, supra, 51 Cal.App.2d at page 680, 125 P.2d at page 579; Cadwell v. Anschutz, 1935, 4 Cal.2d 709, 52 P.2d 916.

Plaintiff emphasizes the language ‘and under other conditions where necessary to insure safety’ in subsection (b) of section 528 of the Vehicle Code. He suggests that it was a question of fact for the trial court to determine as to what other conditions were necessary to insure safety immediately preceding the collision. The quoted language must of course be considered in relation to the context in which it is used. When so considered it plainly has no application to the duty of one driving an overtaking vehicle to give an audible warning to the diver of another vehicle proceeding in the same direction when traveling outside of a business or residence district as the parties were in this case. The quoted language has reference to the duty to give an audible warning when necessary to insure safety when traveling in a business or residence district.

The conclusion that plaintiff's negligence in not sounding his horn was one of the proximate causes of the collision is inescapable. Defendant Gay was not aware of plaintiff's presence on the highway or of the fact that any vehicle was nearing and about to pass him until his truck was approximately in the middle of the highway on his way across it to the filling station. If plaintiff's born had been sounded at the moment or just after plaintiff saw defendant's equipment begin to move, it is reasonably probable that defendant Gay would have heard it and at the speed he was then going, viz., four miles per hour, or perhaps even less as he was just starting up, he could and would have stopped his equipment, or at least his turn, and kept out of plaintiff's way. This case is much like Cadwell v. Anschutz, supra, where plaintiff attempted to pass defendant's car without sounding his horn and the defendant, also without signal, turned slightly to the left to get off the dirt sholder of the road and wholly onto the pavement. The court held under the provision of section 125 of the ‘California vehicle act’ of 1923, St.1923, p. 558, as amended by St.1931, p. 2125, which required ‘the driver of an overtaking motor vehicle’ to signal audibly ‘before passing or attempting to pass a vehicle proceeding in the same direction,’ that the plaintiff was negligent in not sounding his horn and that his negligence proximately contributed to the collision. The judgment in favor of the plaintiff was reversed. On the question of the plaintiff's negligence constituting one of the proximate causes of the collision the court had this to say [4 Cal.2d 709, 52 P.2d 917]: ‘It is reasonably probable that if plaintiff had sounded her horn before attempting to pass defendant's car, he would have delayed his change of course or have taken appropriate precautions. This being so, it seems clear that plaintiff's negligent act was a contributing factor to the injury * * *.’ This reasoning and conclusion is pointedly applicable to the instant case. Moore v. Miller, supra, is in many respects similar to our case. In that case the defendant was driving his truck easterly on Whittier Boulevard in Los Angeles County and plaintiff was going in the same direction and about 150 feet behind him when, according to his testimony, he first saw defendant's truck which was traveling more slowly than plaintiff. Defendant turned his truck a few feet to the right and then when plaintiff was from 50 to 90 feet behind him he turned left across the street in front of plaintiff. Defendant intended to make a U-turn. He testified that before turning he looked several times into his rear view mirrors but did not see plaintiff's car before the collision. Plaintiff did not at any time sound his horn. In holding that plaintiff's negligence in not sounding his horn was one of the proximate causes of the collision the court pointed out that defendant was not aware of plaintiff's presence on the street or of the fact that any vehicle was nearing and about to pass him, and then said (51 Cal.App.2d at page 681, 125 P.2d at page 580): ‘If plaintiff's horn had been sounded, even at the moment before or just after defendant began his left turn, it is reasonably probable that defendant would have heard it and that at the speed he was then going (estimated by him in his testimony at around fifteen miles per hour) he could and would have stopped his turn and kept out of plaintiff's way. It is also pointed out in that case (51 Cal.App.2d at page 680, 125 P.2d at page 579) that the ‘audible warning’ required by section 528 of the Vehicle Code to be given by the overtaking vehicle is ‘for the benefit of the driver of the overtaken vehicle,’ and that its purpose is to warn him that another vehicle is approaching and is about to pass him.

Plaintiff particularly relies on Fate v. Gross, 1923, 61 Cal.App. 146, 214 P. 465, and Nix v. Woodworth, 1936, 11 Cal.App.2d 322, 53 P.2d 765. Neither of these cases is controlling here. The former case is analyzed in Moore v. Miller, supra. It is there said (51 Cal.App.2d at page 681, 125 P.2d at page 580): ‘the plaintiff who had not given warning of his approach was not passing or attempting to pass the defendant, who, after signaling his intention to park his car at the curb, suddently and without warning turned left in front of plaintiff, who was only 15 feet away. The Vehicle Act then in force required a signal to be given ‘before passing’ and the court held that plaintiff had not violated it, and then added that it was a question of fact for the trial court whether plaintiff could have prevented the collision by sounding a warning * * *.' In the Nix case defendant was driving from a service station and started across the boulevard to the west in order to make a southerly turn. Plaintiffs, riding a motorcycle, were traveling northerly on this boulevard. The collision took place as defendant was crossing the boulevard from the service station. The motorcycle was not ‘overtaking a vehicle proceeding in the same direction.’ Section 528, Vehicle Code, was not mentioned in the opinion for clearly it was not applicable to the factual situation there presented. The case is therefore of no assistance here.

Our conclusions on the points already discussed render it unnecessary to consider defendants' contentions that plaintiff was guilty of contributory negligence other than his failure to sound his horn, or their contention that the evidence does not support the finding that defendant Gay was guilty of negligence which proximately caused the collision.

The judgment is reversed.

FOX, Justice pro tem.

SHINN, Acting P. J., and PARKER WOOD, J., concur.