Summary
In Alarid v. Vanier, (Cal.App.), 317 P.2d 110, (affirmed 50 Cal. 2d 617, 327 P.2d 897) a situation very similar to that before us and involving a nearly identical statute, was before the California Court of Appeals.
Summary of this case from Eddy v. McAninchOpinion
11-6-1957
Claude ALARID, Plaintiff and Appellant, v. Alexander J. VANIER, Defendant and Respondent.* Civ. 5554.
Simon & McKinsey, T. W. McKinsey, Long Beach, for appellant. Powell & Banyard, Santa Ana, for respondent.
Claude ALARID, Plaintiff and Appellant,
v.
Alexander J. VANIER, Defendant and Respondent.*
Nov. 6, 1957.
Hearing Granted Dec. 30, 1957.
Simon & McKinsey, T. W. McKinsey, Long Beach, for appellant.
Powell & Banyard, Santa Ana, for respondent.
BARNARD, Presiding Justice.
This is an action for damages arising out of an automobile accident. The complaint alleged that the accident occurred as a result of the plaintiff's car being struck from the rear by an automobile negligently operated by the defendant. The answer denied the charge of negligence and affirmatively pleaded unavoidable accident. A jury returned a unanimous verdict in favor of the defendant, and a motion for a new trial was denied. The plaintiff's appeal from the judgment is presented on a clerk's transcript and an engrossed statement.
On June 15, 1955, the plaintiff was driving south in the outer south-bound lane of a 4-lane highway in Orange County. He stopped his car behind five cars which were also stopped for an intersection stop sign. The defendant was also driving his 1949 Plymouth car south in the same lane of this highway. He observed the plaintiff's car and applied his foot brake, which failed to work, and his car struck the rear of the plaintiff's car.
The defendant's car was equipped with a hydraulic brake system and a mechanical hand brake. From the settled statement it appears that the defendant was 65 years old, that he purchased his car about January 15, 1955, and that he then tested the car and the brakes were good. Between that time and the day of the accident he drove his car about 20 miles per day to and from work, and during that period there was nothing wrong with the brakes and they worked perfectly. From two to four weeks before the accident he had some work on the clutch done at a garage. At that time none of the garage employees made any report or suggestion to him concerning the brakes as there was then nothing wrong with them. About April 15, 1955, he had the car lubricated at a Shell station and was given a report showing that the brake cables and master cylinder had been inspected and lubricated, and indicating that no service or replacements were recommended in connection therewith.
The defendant testified that on the day of the accident he drove about ten miles from his home to his place of employment, which was about 2 1/2 blocks north of the place where the accident occurred. En route he stopped at numerous stop signs and stop signals and the brake worked perfectly. Upon arrival at his place of employment he drove onto the tract, across gravel and dirt between unfinished houses, and parked the car at 7:45 A.M. Neither he nor anyone else drove the car until quitting time at 4:30 P.M. He then drove off the tract and turned south on this highway but did not find it necessary to apply the brake as he entered the highway. As he proceeded south he saw the plaintiff's car coming to a stop behind five or six cars which had stopped for the stop sign. He was traveling about 20 miles an hour, and when he was about 200 feet or slightly less from the place where the plaintiff had stopped he put his foot on the brake pedal, the brake did not take hold, and there was no pressure at all on the brake pedal. He pushed hard, and the pedal went all the way to the floor. He realized there was danger and 'his hair went up in the air. He was scared.' Traffic was heavy, a car was passing him on the left-hand southbound lane, and there was a sloping shoulder and a ditch eighteen inches deep on his right. He could not turn to his left and was afraid to turn to his right for fear he might tip over. He was so excited he did not think to use the hand brake. When asked if he used his hand brake he stated 'It come so sudden, I didn't make any effort. I didn't think of it'. He had no information or warning of any kind that there was anything wrong with the car's brakes prior to the time he tried to stop behind the plaintiff's automobile. The front of his car struck the rear of the plaintiff's car. His car slowed down a little before the impact but not much. Two other witnesses testified that there was no pressure on the brake pedal of defendant's car, and that it went all the way to the floor when they tried it following the accident.
The appellant first contends that the respondent was negligent as a matter of law, and that the court should have granted appellant's motion for a directed verdict on the issue of liability. It is argued that respondent's car was admittedly not equipped with brakes maintained in such condition that they complied with the requirement of section 670 of the Vehicle Code, as then in effect; that this constituted negligence as a matter of law unless excuse or justification was shown; that this presumption of respondent's negligence could only be rebutted by a showing that the statutory violation resulted from causes beyond his control; that the fact that the brake on respondent's car failed is not a sufficient excuse or justification for this violation of the code section; that it was also essential that he produce some evidence of what caused the brake to fail, in order to show that that failure resulted from a cause beyond his control; that no such evidence was produced; and that the court should have found the respondent negligent as a matter of law. This argument erroneously assumes that in defending the charge of negligence the respondent had the burden of affirmatively proving the exact cause of the brake failure. Parker v. Womack, 37 Cal.2d 116, 230 P.2d 823. The defense of unavoidable accident is not an affirmative defense and the burden was still on the plaintiff to prove negligence and proximate cause by a preponderance of the evidence. Polk v. City of Los Angeles, 26 Cal.2d 519, 159 P.2d 931. In the absence of evidence indicating that respondent was chargeable with knowledge that the brake was not or might not be in good condition, the brake failure might well be accepted by the jury as a sufficient excuse or justification for the violation. In the driving of automobiles such brake failures are not unknown and they frequently come suddenly, without any warning. The average driver is not a mechanical expert, and is not necessarily in a position to anticipate such a mechanical failure. The essential question in such a case is not as to exactly what caused the mechanical failure but is as to whether he had or should have had some prior knowledge of facts which should have led him to take proper steps in advance which might have prevented the brake failure. Unforeseen brake failure is a circumstance beyond the control of the driver in the ordinary case, and the evidence here supports the implied finding of the jury that this brake failure resulted from a cause or thing beyond the control of the respondent. Parker v. Womack, 37 Cal.2d 116, 230 P.2d 823; Merry v. Knudsen Creamery Co., 94 Cal.App.2d 715, 211 P.2d 905; Alward v. Paola, 79 Cal.App.2d 1, 179 P.2d 5. Whether sufficient excuse or justification for the statutory violation was here shown was a question of fact for the jury.
The appellant next contends that since a presumption of respondent's negligence was applicable in this case the court committed prejudicial error by giving three instructions which created conflict and confusion as to the standard by which the jury was to judge the respondent's negligence. As appellant admits, the court correctly instructed the jury as to the provisions of sections 670 and 679 of the Vehicle Code; that if a party to the action violated these sections a presumption arises that he was negligent; that this presumption is not a conclusive one; that it may be overcome by other evidence showing that under the circumstances his conduct was excusable and such as might reasonably have been expected from a person of ordinary prudence; and that to overcome the presumption of negligence the evidence must support a finding that the violation resulted from a cause or thing beyond the control of the person charged with the violation. Complaint is made, however, of three other instructions. The first was that 'The mere fact that an accident happened, considered alone, does not support an inference that some party, or any party, to this action was negligent.' In the second the jury was told 'In law we recognize what is termed an unavoidable or inevitable accident. These terms do not mean literally that it was not possible for such an accident to be avoided. They simply denote an accident that occurred without having been proximately caused by negligence. Even if such an accident could have been avoided by the exercise of exceptional foresight, skill or caution, still, no one may be held liable for injuries resulting from it.' In the third the jury was told 'The law does not permit you to guess or speculate as to the cause of the accident in question. If the evidence is equally balanced on the issue of negligence or proximate cause, so that it does not preponderate in favor of the party making the charge, then he has failed to fulfill his burden of proof.'
It is argued that the first of these instructions was prejudicial because it conflicted with the instruction that defendant's negligence was presumed, and further that it was prejudicial because such an instruction should not be given where a res ipsa loquitur factual situation applies, citing Jensen v. Minard, 44 Cal.2d 325, 282 P.2d 7. With respect to the second of these instructions it is contended that it aggravated the error and prejudice resulting from the first one, and that the two together could only have had the effect of completely eliminating the presumption of defendant's negligence. While it is conceded that the third of these instructions was a correct statement of law, it is argued that this instruction suggested that the jury was not to guess as to the cause of the brake failure.
The first of these instructions did not conflict with the instruction that negligence was presumed from a violation of the statute. That presumption was rebuttable and could be rebutted by evidence showing an excuse or justification for such violation. The instruction was limited by the phrase 'considered alone', and did not tend to eliminate a consideration of the presumption of negligence. All phases of the matter were submitted to the jury, and the evidence might well justify an inference that no negligence in fact existed. No request for an instruction on the doctrine of res ipsa loquitur was here made and it does not appear, as a matter of law, that that doctrine was applicable. In considering an instruction in the same language as the first one here in question the court said, in Barrera v. De La Torre, 48 Cal.2d 166, 308 P.2d 724, 727: 'Since such an instruction would be proper when accompanied by an instruction on the res ipsa loquitur doctrine, the same reasoning would likewise indicate its propriety when not so accompanied, if given in a case in which it cannot be said as a matter of law that the res ipsa loquitur doctrine was applicable and in which no instruction with respect to that doctrine was requested.' Neither the first nor second of these instructions eliminated the presumption of negligence from the consideration of the jury, and the question as to whether that presumption had been overcome by evidence showing that the violation of the statute was excusable and justifiable under the circumstances, and that the violation resulted from causes or things beyond the control of the respondent, was one of fact for the jury. In Merry v. Knudsen Creamery Co., 94 Cal.App.2d 715, 211 P.2d 905, under somewhat similar facts, it was held not to be error to give instructions which were practically the same as the first and second instructions here complained of. The case of Talbert v. Ostergaard, 129 Cal.App.2d 222, 276 P.2d 880, relied on by the appellant, is factually distinguishable. In that case, there was a failure to reveal the facts concerning an inspection of the instrumentality which proved faulty which was made three days before the accident. The third of these instructions related to the cause of the accident itself, and not to the cause of the brake failure. We find no prejudicial error in any of these instructions. Each of the parties was entitled to instructions appropriate to his theory of the case, insofar as consistent with the pleadings and the evidence, and the instructions given sufficiently presented all of the issues of fact to the jury.
The judgment is affirmed.
GRIFFIN, J., concurs. --------------- * Opinion vacated 327 P.2d 897.