Opinion
For Opinion on Rehearing, see 59 Cal.Rptr. 63.
Toff, Gordon & Royce, F. John Royce, Mountain View, for appellant.
Collins, Hays & Stewart, by Walter V. Hays, San Jose, for respondent.
MOLINARI, Presiding Justice.
A jury having awarded plaintiff $7,000 damages for injuries sustained by him in an accident which occurred as he was alighting from defendant's automobile, defendant appeals from the judgment entered upon that verdict and from the trial court's order denying his motion for judgment notwithstanding the verdict. Defendant's contentions on appeal are twofold, first that the trial court erred in denying defendant's motion for a nonsuit, which motion was based on the ground that plaintiff's recovery was barred as a matter of law by the automobile guest statute (Veh.Code
Defendant's appeal also purports to be from the trial court's order denying his motion for a new trial. This order is nonappealable; however, its propriety may be reviewed from an appeal from the judgment. (Code Civ.Proc., §§ 963, 956; Litvinuk v. Litvinuk, 27 Cal.2d 38, 42, 162 P.2d 8; Richards v. Gemco, 217 Cal.App.2d 858, 859, fn. 1, 32 Cal.Rptr. 65.)
The Record
At the time of the accident plaintiff and defendant were co-employees. Although plaintiff customarily rode a bus home from work, on several occasions when he was delayed at work and thus missed his regular bus, defendant gave him a ride to the intersection of Lincoln Avenue and Willow Street in San Jose, where plaintiff could catch a bus. This ride, which took a course west along Willow, always terminated at the Lincoln intersection; however, depending upon whether the traffic light for westbound traffic on Willow was green or red as defendant approached the intersection, plaintiff would either get out of defendant's automobile before or after it had crossed the intersection.
Defendant gave plaintiff such a ride from work on July 29, 1964, and since the light on Willow was green as defendant approached the Lincoln intersection, defendant proceeded through the intersection to the far side. Once on the far side of the intersection defendant brought his automobile to a stop partly adjacent to a service station driveway which was approximately 30 feet from the intersection. At this time plaintiff opened the car door, put his right foot on the ground outside the car, and swung around on the seat so that most of his weight was on his right foot and he was looking back through the rear window of the car in a southeasterly direction. While plaintiff was thus in a continuous motion of pulling himself out of the automobile, defendant, not realizing that plaintiff had put his foot outside the car, drove the car forward in order to clear the service station driveway and to allow southbound traffic on Lincoln to make a right turn onto Willow. This movement of the car caused plaintiff's foot to be caught between the running board of the car and the curb on the far side of the service station driveway. Despite the fact that plaintiff was able to release his foot seconds later, he allegedly suffered injuries to his foot as a result of the incident.
The evidence is in conflict as to the exact position of defendant's car at the time he first brought it to a stop on the far side of Lincoln and also after he subsequently moved it forward.
See fn. 3, supra.
The evidence was conflicting as to the duration of the automobile's pause at the time plaintiff first opened the car door and put his foot on the ground. The service station attendant who witnessed the accident testified that the car never stopped at all, but that plaintiff put his foot outside the car while the car was still moving. On the other hand, plaintiff testified that the car came to a complete stop and that the time that elapsed after it came to a stop and before it started to move again was 'more than a second, but not over five seconds.' Defendant similarly testified that the car stopped for 'a few seconds.' In addition, plaintiff testified that at the time of the accident more of his body was out of the car than inside it and that only about one-half of the left side of his seat and leg still remained on the seat.
The Applicability of the Guest Statute
At the conclusion of plaintiff's case, defendant moved for a nonsuit on the basis
To begin with we point out that plaintiff concedes that the record in the instant case clearly reveals that plaintiff was a guest in defendant's automobile, within the meaning of Vehicle Code section 17158, at the outset of the trip from work on July 29, 1964. Moreover, since the instant case was not tried on the theory that the injury to plaintiff resulted from defendant's intoxication and since the trial court ruled as a matter of law that the evidence was insufficient to show wilful misconduct on the part of defendant, it is apparent that defendant was entitled to a nonsuit unless at the time of the accident plaintiff's status as a guest in defendant's car had terminated.
The question of when the guest-host relationship terminates within the meaning of the guest statute has been considered in two California cases, namely, Prager v. Isreal (1940) 15 Cal.2d 89, 98 P.2d 729, and Boyd v. Cress (1956) 46 Cal.2d 164, 293 P.2d 37. In Prager the defendant took plaintiff for a ride to the beach. There the two moved to the back seat of the defendant's automobile to eat lunch. Sometime later they decided to resume their ride. Accordingly, the plaintiff, who was seated on the right side of the rear seat, started to leave the car on that side in order to resume her position in the front seat. At the same time the defendant alighted on the left side to resume his position as driver. As the plaintiff had one foot on the ground and the other on the running board, the car moved forward, throwing the plaintiff to the ground and causing her to sustain injuries. On the basis of these facts the plaintiff brought an action against the defendant to recover damages for her injuries on the theory that the defendant was negligent in failing to set and apply the brakes in the automobile. The jury returned a verdict for the plaintiff and the defendant subsequently appealed, his principal contention being that a guest-host relationship existed between the plaintiff and the defendant and that therefore the trial court erred in refusing to instruct the jury in terms of section 141 3/4 of the California Vehicle Act, which, as in effect at the time of the accident, provided in pertinent part as follows: 'Any person who as a guest accepts a ride in any vehicle, moving upon Before proceeding to a consideration of the Boyd case, we discuss briefly the case of Smith v. Pope, 53 Cal.App.2d 43, 127 P.2d 292, which cited and relied upon the Prager case in determining when the guest-host relationship begins. In Smith the plaintiff was thrown to the ground when the defendant's car jerked forward as the plaintiff was in the process of entering the car. At the time of the accident the plaintiff had grasped the door handle on the side of the car opposite the drive and had one foot on the ground and one foot in the air but not yet on the running board. On appeal from the judgment in favor of the plaintiff the defendant contended that the plaintiff was precluded from recovering from the defendant on the basis that as a matter of law the plaintiff was a guest at the time of the accident. The appellate court rejected this contention and affirmed the judgment of the trial court on the theory that the guest statute was not applicable to the facts in the case before it because the plaintiff was not riding in the defendant's automobile at the time of the accident. In so holding, however, the court noted that the guest statute which was applicable in the Prager case had been repealed and re-enacted as Vehicle Code section 403 and that the language of the former section 'moving upon any of the public highways' and 'while so riding' had been deleted from the new Vehicle Code section, which provided in relevant part as follows: 'No person who as a guest accepts a ride in any vehicle upon a highway without giving compensation for such ride * * * has any right of action for civil damages against the driver of such vehicle * * * on account of personal injury to * * * such guest during such ride * * *.' After stating that under the said statute there were two conditions for exemption from liability, that is, (1) a guest shall accept a ride in any vehicle, and (2) the injury must occur during such ride, the reviewing court noted that the phrase 'during such ride' contemplates that the ride must have actually commenced and includes 'all the time elapsed from the time of entering the vehicle, and while so continuing such occupancy, until the journey's end.' (P. 47, 127 P.2d p. 295.)
This section is the immediate predecessor of Veh.Code § 17158.
Turning to the Boyd case we note that the facts in that case were as follows: While the plaintiff and the defendant were taking a trip in the latter's automobile the defendant decided to stop momentarily to examine the tires and to stretch and relax. Accordingly, the defendant steered his automobile to the side of the highway and brought it to a stop. At this time the plaintiff stepped out of the car, leaving the right door in a 'locked open' position. While the plaintiff was standing next to the door outside of the car he was struck by the door when the car suddenly rolled backward a Finally, we note the cases of Frankenstein v. House, 41 Cal.App.2d 813, 107 P.2d 624, Panopulos v. Maderis, 47 Cal.2d 337, 303 P.2d 738, and Trigg v. Smith, 246 A.C.A. 583, 54 Cal.Rptr. 858. In each of these cases it was held that the guest-host relationship was not broken where the automobile was stopped; the driver had temporarily gotten out of the vehicle, but the guest remained therein; and thereafter, the automobile moved and as a result of such movement caused the guest to be injured.
In Trigg, the plaintiff guest was injured under the following circumstances: The automobile in which the plaintiff had accepted a ride from the defendant-host was brought to a stop by the defendant across the street from the plaintiff's home; the plaintiff and the defendant talked for a few minutes and then the defendant stepped out of the car, leaving the motor running and the transmission in the drive position without setting the emergency brake; the plaintiff moved across the seat in order to get out on the driver's side; as she reached the vicinity of the steering wheel the car lurched forward, and after traveling approximately 120 feet, struck a tree. Under these circumstances, the appellate court, relying upon Boyd, held that the plaintiff was still a guest when she was injured and, after noting that the term 'ride' as used in Vehicle Code section 17158 has a broad connotation, stated as follow:
'* * * the concept of the beginning of a ride is when a guest enters an automobile, and the concept of the end of the ride is when the guest leaves the automobile and alights once more upon the ground.' (Emphasis added.) (P. 586, 54 Cal.Rptr. p. 861.)
Turning to the instant case in the light of the foregoing authorities, we conclude that plaintiff was as a matter of law a guest in defendant's automobile within the meaning of Vehicle Code section 17158 at the time of his accident. We are required to reach this conclusion, notwithstanding our own predilection for a rule which does not predicate the termination of the host-guest relationship upon whether any portion of the guest's anatomy was in the vehicle at the time of the accident, by the 'in or upon the vehicle' test enunciated in Boyd. The evidence in this case is without dispute that at the time of the accident, although plaintiff had most of The seeming inconsistency between the holding in Prager that the guest statute does not apply where the person for whom guest status is sought is in the process of alighting from the automobile with one foot on the running board and one foot on the ground and the 'in or upon a vehicle' test set forth in Boyd is reconciled, we believe, upon the basis that Prager was construing a guest statute the language of which was different from that of our present guest statute. Moreover, Prager is distinguishable because of its particular facts. Salient in Prager is the circumstance that the automobile from which the plaintiff was alighting at the time of the accident had been parked for several hours while the plaintiff and the defendant ate their lunches in the back seat of the car. Of particular significance factually, in the light of the Boyd test, is that in Prager, although the plaintiff had one foot on the running board she had stepped out of the automobile and was no longer 'in or upon the vehicle' in the sense articulated by the Boyd rule.
The granting of a nonsuit is warranted only when, disregarding conflicting evidence and giving the plaintiff's evidence all the value to which it is legally entitled, and indulging in every legitimate inference, the trial court concludes that there is no evidence of sufficient substantiality to support a verdict for the plaintiff. (Raber v. Tumin, 36 Cal.2d 654, 656, 226 P.2d 574; McFarland v. Voorheis-Trindle Co., 52 Cal.2d 698, 703, 343 P.2d 923.) In the instant case, as we have indicated, the evidence, received in the light most favorable to plaintiff, shows that he was a guest in defendant's car at the time of the accident. Accordingly, he was precluded from recovering from defendant on the basis of ordinary negligence. There being no proof of wilful misconduct on the part of defendant the trial court should, therefore, have granted the motion for nonsuit. Since the rules relating to the granting of a motion for judgment notwithstanding the verdict are the same as those relating to a nonsuit, and since defendant made the requisite motion for a directed verdict at the conclusion of the trial, it is apparent that the trial court also erred in denying defendant's motion for judgment notwithstanding the verdict. (See Code Civ.Proc. § 629; Knight v. Contracting Engineers Co., 194 Cal.App.2d 435, 442, 15 Cal.Rptr. 194.)
Having concluded that the trial court erred in denying defendant's motion for a nonsuit, it is unnecessary to consider defendant's alternative contention on appeal, namely, that the trial court erred in refusing to give the instruction requested by defendant as to the meaning of the guest statute.
The appeal from the order denying the motion for new trial is dismissed. The judgment is reversed.
SIMS, J., concurs.