WITT v. City of Los Angeles, a municipal corporation, Intervenor-Appellant.* (1961)

This is an action by James Witt and Julius Grossman to recover damages for personal injuries which they received in an automobile collision between the car they were driving and that of Raymond Jackson. The City of Los Angeles, as the owner of the automobile driven by plaintiffs, intervened to recover for damage to the automobile and for payments made to each plaintiff for compensation and medical expenses. The jury returned verdicts against both plaintiffs and against intervenor and in favor of defendant Jackson. Judgment was rendered thereon and a motion for a new trial was denied. Plaintiffs and intervenor appeal.

The accident took place at 2:30 a. m. on March 3, 1958, on Sepulveda Boulevard in Los Angeles. The weather was clear and dry, traffic was light, the street was lighted by overhanging globes placed approximately 200 feet apart, there were no road defects or obstructions at the place of the accident. Sepulveda Boulevard is a straight north-south street having two north-bound and two south-bound lanes separated by a double white line. The impact occurred on the north-bound lane of travel next to the double white line. The automobile operated by plaintiff Witt was a marked black and white police squad patrol car equipped with two red lights mounted on top and toward the front of the automobile which shone both to the front and to the rear. Plaintiff Grossman occupied the front right seat of the vehicle at the time of the accident. Both plaintiffs were in uniform and were on duty as police officers employed by intervenor. As plaintiffs were proceeding north in the lane next to the double white line they were struck from the rear by the automobile operated by defendant Jackson. All headlights and tail lights of both vehicles were operating normally at the time of the accident.

The testimony relating to how the accident occurred is as follows: Plaintiffs testified that they were traveling north on Sepulveda in the lane next to the double white line when they observed a 1957 Dodge automobile also traveling north-bound on Sepulveda approximately one-quarter to one-half mile south of the point of impact. This vehicle was traveling at approximately 20 to 25 miles per hour in the lane to plaintiffs' right. The posted speed limit was 45 miles per hour. They suspected at the time that the driver was intoxicated in violation of section 502 (now § 23102) of the Vehicle Code. At some time during the one-half mile or less, Witt had looked in his rear view mirror but had not observed any traffic. Prior to impact he pulled the squad car alongside the Dodge which was being operated by Aaron Shanedling, a witness herein. Plaintiffs also testified that they had switched on the red roof lights of the squad car some time before pulling alongside the Dodge and that plaintiff Grossman then flashed his flashlight at the driver of the Dodge and that these were both normal police procedures. As the Dodge was pulling off the roadway in the process of stopping, witt looked in his rear view mirror and saw headlights approaching rapidly and heard brakes or tries screeching. The squad car was then struck from the rear by what proved to be the front of the automobile owned and operated by defendant Jackson. Plaintiffs' testimony (including prior admissions) as to when the red lights on the roof were turned on varies from the moment after they had pulled alongside the Dodge to five to ten seconds before the actual impact. Witt called for an ambulance and police assistance over his two-way radio.

Defendant Jackson testified that he was a California highway patrolman, off duty, returning home from his brother's home in Inglewood at the time of impact. He was driving his own automobile, was dressed in his uniform, but was not wearing his badge. He admitted having had two glasses of beer with his lunch during the proceeding afternoon and a quart that evening at his brother's house. Defendant further testified that when he was about 100 years back of what turned out to be the squad car, he first observed this vehicle by seeing its red tail lights in the lane to his right proceeding north on Sepulveda and that he, defendant, was traveling in the lane next to the double white line. He then observed the squad car make a lane change into his lane when there was a distance of approximately 100 feet between his car and the squad car. He was traveling approximately 35 miles per hour and the squad car was traveling at a slower rate of speed. He also then observed for the first time the Dodge driven by Shanedling in the right lane, also traveling at a speed slower than his own. He testified that he did not apply the brakes of his automobile at the time that he observed the squad car changing lanes but that when he was 50 to 75 feet from the squad car he saw the red roof lights go on and at that time he had his foot on his brakes. He testified that five or ten seconds elasped from the time that he first observed the roof lights switch on until the time that he struck the squad car in the rear. Defendant testified that he did not swerve in either direction to avoid the impact since he did not feel he could do so with safety; that he never observed any flash of light between the squad car and the Dodge; and that his tires and brakes were in good condition before the accident.

Shanedling testified that although he had observed the headlights of a vehicle to the rear he didn't know in which lane the car was traveling. He first discovered it was a police car when it pulled alongside and the flashlight attracted his attention. He then proceeded to slow up and pull over to the shoulder of the road and that from the time that he first observed the squad car until he heard the crash at least five seconds had elapsed. After the accident he observed that both cars were in the lane next to the double white line.

Two investigating officers testified that they found skid marks left by defendant's automobile which were 47 feet in length; that they observed defendant and that in their opinion he was under the influence of alcohol to the extent that his ability to dirve was impaired and that he should not have been driving. One of the officers testified that at the time of the accident defendant gave him his version of the accident, part of which was that it was difficult to estimate his distance behind the police car, but that he had been following it for about 200 yards when the police car's red lights came on immediately when plaintiffs started to stop. He said he hit his brakes immediately but there was no chance of stopping in time and he hit the rear of the other car. He said he could see no reason for the police car to stop. There was nothing ahead of him and he saw no other cars near him. Defendant testified that he did not recall stating that he had not observed any other vehicle.

Defendant's brother testified that defendant was not under the influence of alcohol at the time he left his house (which defendant says was about 2:00 a. m.) There was additional testimony as to defendant's lack of sobriety two hours following the accident. Injury to both plaintiffs is undisputed, as was damage to the squad car.

Among the contentions of plaintiffs and intervenor (hereinafter referred to as plaintiffs) is that the court erred in instructing the jury on the defense of contributory negligence. In addition to the traditional instruction regarding contributory negligence the court also read the contents of sections 544(c) (now § 22109) and 526(a) (now § 21658(a)) of the California Vehicle Code to the jury. Section 544(c) reads as follows: ‘No person shall stop or suddenly decrease the speed of a vehicle on a highway without first giving an appropriate signal in the manner provided in this chapter to the driver of any vehicle immediately to the rear when there is opportunity to give such signal.’ Section 526(a) is to the effect without first ascertaining that it can be without first ascertaining that it can be done with safety. The jury was also instructed that a violation of either of these sections constituted negligence as a matter of law.

Plaintiffs first argue that there is no substantial evidence to support this defense. There is no merit in this contention. Defendant's testimony as to how the accident occurred is as follows: ‘* * * I was overtaking, apparently overtaking a vehicle that was in the right hand lane. I did not think anything about this because I was in the passing lane. And as I approached this vehicle pulled into the lane in front of me, in my lane, and at this time revealed there was a car ahead of him in the right hand lane and his brake lights went on and I did not know if he was going to stop, slow down or if he was putting light pressure on his brake or what, and suddenly these lights on the roof, red lights came on and I assumed he was going to stop. Then I tried to do the same thing.’ He further testified that he was about 50 to 75 feet away when the roof lights on plaintiffs' car went on. Plaintiff Witt testified to the effect that his suspicion was aroused by the speed of the Dodge of only 25 miles per hour in a 45 mile per hour speed zone and that he pulled alongside to indicate to the driver that he should pull over and that after the Dodge began to pull over, he testified: ‘As I started to decelerate so that I could pull behind the car that we were pulling over I looked in my rear view mirror and saw headlights moving up rapidly toward me.’ Witt also testified that although he could not say with certainty, he would guess that three or four seconds at the most elapsed from the time he first saw the headlights bearing down on him and the time of impact, and that he had not seen any cars behind him until he had pulled alongside the Dodge. Assuming the truth of this testimony, as the jury was entitled to do, we have a situation in which Witt changed lanes 100 feet (about 6 car lengths) in front of an automobile that was traveling faster than he was. He made this lane change apparently without knowledge of the presence of defendant's automobile. Then, in a lane which any experienced driver knows is usually used for passing (defendant testified he thought Witt was going to pass), Witt decelerated to fall in behind the Dodge. That this was a fairly rapid deceleration could be inferred from Shanedling's testimony that he began to slow up and pull over when he discovered that Witt and Grossman were police officers. Assuming a normal stopping rate for the Dodge, the police car would have to decelerate at an even greater rate to fall behind the Dodge. The jury could reasonably infer that Witt did not see defendant approaching until after this deceleration process had begun. It is too clear for argument that this evidence presents at least a factual question for the jury as to whether Witt exercised ordinary care for his own safety.

It is claimed nevertheless that there is no evidence to support a violation of the above code sections, and that it was therefore error to include them in the instructions. It cannot be said as a matter of law that it is safe to change lanes six car lengths ahead of another car which is traveling at greater speed. And the evidence would support a finding by the jury that Witt had not ascertained whether another vehicle was traveling in the lane in which the collision occurred. Thus it could reasonably be found that Witt had changed lanes without first ascertaining ‘that such movement [could] be made with safety.’ With respect to section 544, relating to a decrease of speed without an appropriate signal, plaintiffs point to defendant's testimony that ‘his brake lights went on and I did not know whether he was going to stop, slow down or if he was putting light pressure on his brake or what * * *.’ It does not appear from the evidence whether any other signal was given. While reasonable men might differ on the subject, it was for the jury to determine whether the signal given was appropriate in time and distance under the circumstances of the moment.

There is no merit to the contention of plaintiffs that it was error not to instruct the jury that § 545 (§ 22110) of the Vehicle Code provides that ‘the signals herein required shall be given either by means of the hand and arm or by signal lamp or mechanical signal device * * *’. While such an instruction would be helpful, its omission could not mislead the jury. It would still have to determine whether the signal given was appropriate under the circumstances.

There is likewise no merit to the contention that if Witt was negligent, such negligence was not, as a matter of law, a proximate cause of the accident. In support of this contention it is merely claimed that defendant should still have been able to avoid the collision. There is no real dispute that the evidence would support a finding that defendant was negligent or that his negligence proximately contributed to the collision. The question is whether Witt's negligence also contributed directly. It cannot be said as a matter of law that if Witt had made his lane change sooner, when defendant was further back, or that if he had signalled sooner, or more clearly, by hand or otherwise, that the collision would have occurred nevertheless.

Plaintiffs' last argument with respect to the contributory negligence of Witt is that the exemption privileges contained in section 454 (now §§ 21055 and 21056) of the Vehicle Code barred the trial court, as a matter of law, from submitting this defense to the jury. It is there provided that drivers of authorized emergency vehicles are exempt from the code sections cited herein, among others, under the following conditions: ‘* * * whenever any said vehicle is being * * * used in the immediate pursuit of an actual or suspected violator of the law * * *. Said exemptions shall apply only when the driver of said vehicle sounds a siren as may be reasonably necessary and the vehicle displays a lighted red lamp visible from the front as a warning to others.’ It is further provided that ‘said exemptions shall not relieve the driver of any said vehicle from the duty to drive with due regard for the safety of all persons using the highway, nor shall the provisions of this section protect any such driver from the consequences of an arbitrary exercise of the privileges declared in this section.’ It is argued that all the requirements of the statute are here satisfied. The red roof light was turned on, and it is apparent from the facts that a siren was unnecessary and would have been futile for the purpose of avoiding this collision had it been used. But it was a factual question whether the exemption should apply for at least two reasons. First, by requiring the red lamp to be on as a condition of the privilege, the code section obviously contemplates adequate notice to others. For example, if the red light were turned on by Witt when he looked in his mirror and saw Jackson skidding into him, manifestly there would be no exemption. Admissions of Witt indicate he did not turn on the red lights until he was alongside the Dodge. Defendant testified that he saw the roof lights go on when he was fifty to seventy-five feet behind the police car. These statements are obviously estimates based on inexact memory, and it is equally obvious that they presented a question of fact for the jury as to whether the red lights were turned on soon enough to give proper warning. See Mulligan v. West Coast Fast Freight, 151 Cal.App.2d 791, 797, 312 P.2d 59. Second, even though the officers may have complied with the basic requirements of the exemption statutes, the jury could reasonably have found an arbitrary exercise of the privilege granted thereby. Whether or not an exercise of the privilege is arbitrary may depend upon whether an emergency in fact exists. Lucas v. City of Los Angeles, 10 Cal.2d 476, 75 P.2d 599. Further, it could well be found that whatever the emergency that may have existed, it did not require a sudden decrease in speed in a lane ordinarily used for passing. Whether the particular act which is claimed to have contributed to the collision was an arbitrary exercise of the privilege is a question of fact where the act was not reasonably necessary to the performance of the official duty giving rise to the exemption. See Reed v. City of San Diego, 77 Cal.App.2d 860, 177 P.2d 21, 26; Lucas v. City of Los Angeles, supra. It is a further question of fact whether Witt drove ‘with due regard for the safety of all persons using the highway.’

Plaintiffs' next contention is that it was prejudicial error to instruct the jury under the facts of this case that conduct in violation of Vehicle Code §§ 526(a) and 544(c), supra, constitutes negligence as a matter of law. It is argued that a violation of these code sections merely creates a presumption of negligence which may be overcome by evidence of justification or excuse (Alarid v. Vanier, 50 Cal.2d 617, 621, 327 P.2d 897), and that justification or excuse is here a factual question. But the evidence is uncontradicted that Shanedling (the driver of the Dodge) was merely driving slowly, in a manner that was not erratic. The only reason he was investigated was because in the officers' experience drunk drivers frequently drive slowly in a zone in which higher speeds are permitted. The record does not contain a shred of evidence which would justify a violation of code sections enacted for the safety of people on the road. Nor is there a conflict between this instruction and the one relating to exemptions. The jury was told that if the requirements of the exemption were met, then it is not negligence to disregard the rules from which one is exempted. The jury was not presented with an insoluble conflict. If the exemption conditions are found to have been met, the jury's duty is clear. If not, then it is equally clear that they were to determine whether the code sections were in fact violated.

Plaintiffs next argue that the court erred in instructing the jury that plaintiffs had the burden of proving that defendant's negligence was ‘the’ proximate cause of plaintiffs' injuries instead of ‘a’ proximate cause. Although the instruction is incorrect, the jury was elsewhere correctly instructed, and ‘considering all the instructions together, it cannot be held that the jury was misled by the defect * * * wherein the article ‘the’ was used preceding the words ‘proximate cause’ instead of the article ‘a’. The jury was adequately instructed as to the essential legal principles * * *.' Dieterle v. Yellow Cab Co., 53 Cal.App.2d 691, 696, 128 P.2d 132, 134.

Plaintiffs' next contention is that the court erred in instructing the jury that ‘the testimony of one witness worthy of belief is sufficient for the proof of any fact and would justify a finding in accordance with such testimony, even if a number of witnesses have testified to the contrary, if from the whole case, considering the credibility of witnesses and after weighing the various factors of evidence, you should believe that a balance of probability exists pointing to the accuracy and honesty of the one witness.’ We are cited to Rideau v. Los Angeles Transit Lines, 124 Cal.App.2d 466, 268 P.2d 772, which found a similar instruction to be incorrect where the word ‘verdict’ was substituted for ‘finding’ in the phrase, ‘would justify a finding.’ The objection stated is that “The instruction confuses the rule as to the legal sufficiency of evidence with that of the preponderance of evidence.” Ford v. Chesley Transportation Co., 101 Cal.App.2d 548, 554, 225 P.2d 997, 1007. That objection is not apposite here. The instruction merely entitles the jury to believe any one witness worthy of belief. It does not suggest that a verdict may be rendered in accord with the testimony of such a witness when the evidence preponderates to the contrary. The substitution of the word ‘finding’ for the word ‘verdict’ was a direct result of the above criticism. See note, B.A.J.I. No. 25, 4th ed.

Plaintiffs also complain of the trial court's refusal to give certain requested instructions. The first omission complained of relates to the instruction that ‘when a person's lawful employment requires that * * * he take risks which ordinarily a reasonably prudent person could avoid, the necessities of such a situation, insofar as they limit the caution that he can take for his own safety, lessen the amount of caution required of him by law in the exercise of ordinary care.’ It was not error to refuse this instruction because it does not appear from the record that the necessities of the situation in any way limited the caution Witt could take for his own safety. Furthermore, the jury was properly instructed that negligence is a relative term, and that the conduct in question must be considered in the light of all the surrounding circumstances. This instruction was adequate under the facts of this case.

The next complained-of omission is the instruction that it is not necessary to support a finding of negligence that every act or omission charged against a person be proven. It is argued that without this instruction the jury might believe that it is required to find against defendant on all four of plaintiffs' charges of negligence before they could find for plaintiffs. But the jury was instructed that negligence is the doing of ‘an’ act which a reasonably prudent person would not do, and counsel for plaintiffs emphasized this point in argument. It does not appear that prejudice resulted from the omission.

The last of the instructions which the trial court refused to give and of which refusal plaintiffs complain is the following: ‘* * * When there is evidence that one did look but did not see that which was in plain sight, or that he listened, but did not hear that which he could have heard, in the exercise of ordinary care, it follows that either some part of such evidence is untrue or the person was negligently inattentive.’ This instruction has been said to be argumentative and has never, according to the editors of B.A.J.I., been held to be prejudicial error in its refusal. See B.A.J.I. No. 140 and cases cited thereunder. Furthermore, this is not a case in which defendant looked but did not see, but one in which he looked, saw, and had the accident nevertheless.

Plaintiffs contend that the trial court erred in refusing to admit into evidence a portion of a statement by Witt which assertedly explains a portion already received. While cross-examining an investigating officer, defendant's counsel questioned the witness with respect to a statement made by Witt to the witness. Counsel read from the last page of the officer's report as follows: “I followed this vehicle and observed it being driven straight but slow. I pulled up alongside * * * and looked at the driver and decided to interrogate him. At this time I turned on the red lights.' Now do you remember Mr. Witt telling you that?' On redirect plaintiffs' counsel offered the rest of the statement and was overruled. The portion offered contained Witt's statement that he then looked in the rear view mirror, saw a car approaching at about 65 M.P.H. and was hit. We are cited to section 1854 of the Code of Civil Procedure, providing that when one party offers a detached declaration, writing or act, and it is admitted, the whole may be inquired into by the other party, insofar as it is necessary to make the former portion understood. The test of admissibility has been said to be whether the additional matter is relevant to the portion previously introduced. Rosenberg v. Wittenborn, 178 Cal.App.2d 846, 3 Cal.Rptr. 459; People v. Kent, 135 Cal.App.2d 422, 287 P.2d 402. In substance, the admitted portion constitutes an admission by Witt that he didn't turn on the red roof lights until he had pulled up alongside the Dodge. Plaintiffs argue that the excluded portion is relevant in that it tends to explain when the red lights were turned on in relation to the point of impact with respect to both time and distance. While some slight relevancy might be conceded in this regard, it is of such a remote and speculative character as to preclude the possibility that a miscarriage of justice was effected by the exclusion. Cal.Const., Art. VI, § 4 1/2. Rosenberg v. Wittenborn, supra, cited by plaintiffs, is not controlling. In that case, an action to recover damages for personal injury, a statement of defendant that he had entered the intersection against a red light, made to a policeman, constituted the primary admission. It was held to have been proper to admit by way of explanation, at the instance of the defendant, the rest of his statement to the effect that his brakes had failed him as he tried to stop at the intersection. The prejudice inherent in the exclusion of such a statement is manifest. The primary admission would leave the jury with the impression that defendant had entered the intersection against the red light solely because of excessive speed. The additional portions so qualified the former ‘that they carried no implication * * * that defendant ran the red light because he was going too fast to stop.’ 178 Cal.App.2d at page 851, 3 Cal.Rptr. at page 463. Furthermore, since defendant testified on direct that his brakes had failed, the exclusion of the questioned portion would have raised serious but unwarranted doubts as to the credibility of defendant's testimony, since the trier of fact may well have wondered why he did not relate this fact to the policeman.

Nor can plaintiffs complain of the court's action in conditioning the admissibility of a hospital record on the elimination from it of a diagnosis of defendant's condition as ‘HBD 2-plus.’ It is conceded that this item relates to defendant's intoxication. But the record is replete with evidence of his intoxication. The trial court has a broad discretion to exclude cumulative evidence. People v. Albert, 182 Cal.App.2d 729, 742, 6 Cal.Rptr. 473. As was stated in People v. King, 104 Cal.App.2d 298, 309, 231 P.2d 156, 162, ‘While it may be that there frequently are some things recorded on a hospital chart that in a strict sense may not be admissible, such items can be excluded therefrom upon the making of a proper objection * * *.’ It cannot be said to be error for the trial judge to have excluded this unexplained, cryptic, technical abbreviation, which could only have served to confuse the jury, especially in light of the fact that there was already abundant testimony relating to defendant's intoxication.

In plaintiffs' final contention for a general reversal it is argued that the trial judge made certain prejudicial statements in the presence of the jury. This contention is of such an insubstantial nature that it merits no further comment.

Plaintiffs present the additional contention that the court erred in instructing the jury as to contributory negligence with respect to Grossman. With this contention we agree. With respect to contributory negligence, the jury was given the general definition and was told that one who is guilty of contributory negligence may not recover from another for the injuries suffered, and if they found that ‘plaintiff’ was negligent, and that this negligence was a proximate cause of the injury, then they must find for defendant. Although contributory negligence had not been pleaded against Grossman, these instructions were submitted to the jury without any qualification with respect to him. The parties have stipulated that imputed negligence is not in issue, and it does not appear that there is any evidence to support a finding that Grossman was negligent. The only evidence as to Grossman's activities indicates that he participated in the decision to investigate the Dodge and he operated the flashlight which was used to attract the driver's attention. Neither of these acts could reasonably be considered to be a failure to exercise the care of a reasonably prudent man. There is no evidence to show that Grossman in any way directed Witt in the conduct of the investigation or the manner in which he drove the car. We must therefore conclude that as a matter of law, Grossman was not guilty of contributory negligence. In Christensen v. Bocian, 169 Cal.App.2d 223, 226, 336 P.2d 1018, 1020, it was stated: ‘It is not the law that under all possible circumstances one who is riding as a guest in such a vehicle must watch the road and the driver, and hold himself in readiness to give directions to the driver concerning the dangers of the road.’ In that case plaintiff was a passenger in an auto driven by another, which auto collided with that of defendant. It was held that plaintiff was free from contributory negligence as a matter of law, and that it was therefore prejudicial error to instruct the jury on contributory negligence. On page 229, of 169 Cal.App.2d, on page 1022 of 336 P.2d, the court stated: ‘That the giving of the instruction on contributory negligence * * * was highly prejudicial is apparent when it is recalled that plaintiff was not chargeable with the negligence of her driver * * *, and the instruction on contributory negligence created an insoluble question of whether the verdict [for defendant] was based on [the question of] defendant['s] negligence or some assumed negligence of plaintiff.’ Still more in point is Kollert v. Cundiff, 50 Cal.2d 768, 329 P.2d 897. In that case, as in this, both driver and passenger brought an action. In that case, as in this, contributory negligence was not pleaded as against the passenger. And in that case, as in this, the evidence would support a finding that both the driver and the defendant were negligent. And also in that case, as in the case at bar, the issue of contributory negligence was submitted to the jury as to both plaintiffs. On pages 771–772 of 50 Cal.2d, at page 899 of 329 P.2d the opinion states: ‘The jury may have believed that [the passenger] was chargeable with [the driver's] negligence or that she in some degree failed to exercise due care for her own safety, and the erroneous instructions, when considered [together] with the evidence, may have improperly caused the jury to go beyond the issues pleaded and return the verdict against [the passenger] on the ground of contributory negligence. In these circumstances we are of the view that the erroneous instructions require that the judgment * * * be reversed.’

Defendant argues that plaintiffs requested B.A.J.I. No. 52, to the effect that the instructions are to apply to each plaintiff unless otherwise stated,¹ and that any error resulting therefrom was therefore invited by plaintiffs. This argument misses the mark. The error complained of is that the jury was instructed at defendant's request as to contributory negligence generally without limiting its application with respect to plaintiff Witt. B.A.J.I. No. 52 was requested in conjunction with B.A.J.I. No. 52(b) which requires the jury to assess the damage of each plaintiff separately in the event they find that both are entitled to recover. It is a perfectly proper instruction. The error lay in the failure to qualify the otherwise proper general instructions on contributory negligence. Kollert v. Cundiff, supra.

The judgment is affirmed as to plaintiff Witt and intervenor and reversed as to plaintiff Grossman.

FOOTNOTES

1.  The complete instruction reads: ‘Although there are three plaintiffs in this action, the case of each is separate from, and independent of, that of the others. The law permits them to join as plaintiffs solely because their claims involve the same accident. However, their rights, if any are separate, not joint. The instructions given you apply to each plaintiff unless otherwise stated, and you will determine each plaintiff's case separately, to the same effect as if you were trying separate actions.’

FOR, Presiding Justice.

ASHBURN, J., and McMURRAY, J. pro tem., concur.