Opinion
Hearing Granted June 22, 1944.
Appeal from Superior Court, Yuba County; Warren Steel, Judge.
Death action by Sadie Anthony and another against Don G. Hobbie. Judgment for defendant, and plaintiffs appeal.
Affirmed. COUNSEL
J. Oscar Goldstein and Burton J. Goldstein, both of Chico, for appellants.
Rich & Weis and Richard H. Fuidge, all of Marysville, for respondent.
OPINION
ADAMS, Presiding Justice.
This action was prosecuted by the surviving wife and sole surviving daughter of H. L. Anthony, to recover damages for the death of said H. L. Anthony which was alleged to have been caused by the negligence of defendant, Don G. Hobbie. Defendant denied negligence on his part and pleaded contributory negligence on the part of decedent which proximately contributed to his death.
The cause was tried by the court sitting with a jury. In support of their complaint plaintiffs produced several witnesses including defendant who was called under the provisions of section 2055 of the Code of Civil Procedure. The defendant, who was a Chevrolet dealer in Oroville, testified that in the late afternoon of January 30, 1941, he went to Sacramento from his home in Oroville, driving a 1941 Chevrolet sedan. About eleven o’clock that evening he left Sacramento on his way home. At a point north of Wheatland he ran out of gas, and was driven to Marysville by a passing motorist. There defendant arranged to have gasoline brought to his car, and then returned to it. Shortly thereafter F. W. Muller arrived with gasoline. Defendant proceeded north on Highway 99E, at a speed of approximately 50 miles per hour. As he approached the point where the accident happened he observed a car parked at a peculiar angle in a side road, with its headlights pointing in a northeasterly direction. The next thing he knew he struck the deceased, who, he said, was right in the middle of the road in front of him. He stated that when he was 75 or 100 feet from him, he saw Anthony, who was then standing about three feet on the west side of the white line of the highway, with his arms in the air facing the east and leaning; that it looked like he was falling forward, either trying to get out of the way or deliberately falling in front of the car, and that at the point of impact he was approximately three feet on the east side of the white line; that he was struck by defendant’s left front fender and his body came up over the fender and hit the door of the car, then rolled across the highway on the west side to the edge of the pavement. That he, defendant, applied his brakes, swerved his car slightly and brought it to a stop at a distance said to have been 217 feet from the point of impact. His left front fender and headlight were damaged, his left tire was blown out, and there was a dent in the panel of the left front door. It was stated by defendant that his car, brakes and headlights were in good condition, that the highway was dry; that the night was chilly and the sky overcast, and that in some low places on the highway there was low fog, but that at the place of the accident the visibility was good.
Mr. Muller was then called by plaintiffs, and testified that after delivering gasoline to Mr. Hobbie’s car he followed it; that about a quarter of a mile from the place where the accident occurred there was a swale where it was foggy; that he followed defendant’s car for three or four miles; that he was about 75 yards behind it, and traveling 50 miles per hour; that he wasn’t gaining on Hobbie, and Hobbie wasn’t gaining on him; that there was no traffic before the accident happened; that he saw an object flying across the highway which he detected to be a man’s body; that he stopped by the side of it; that Hobbie’s car seemed to swerve and pulled off to the right; that when he got out of his car a woman (Miss Hansen) was there, screaming; that he took her in his car to Marysville; that she was muddy from head to foot; that he took her to the hospital, then went back to the scene of the accident with a tow truck; that on his return he asked Hobbie how the accident happened and the answer was that it happened so quick he didn’t know what happened; that he saw tire marks in the road caused by the tire that blew out; that he took Mr. Hobbie in his truck and towed his car to Marysville. On cross-examination he said that Hobbie was driving on the right side of the road at the time of the accident; that he did not see deceased until after the accident; that at the time he saw Miss Hansen she was hysterical, and he thought she was intoxicated; that she couldn’t walk very well.
H. L. Williams, state traffic officer, was next called by plaintiffs. He testified that the paved portion of the highway at the scene of the accident was 21 feet wide; that he found a broken eyeglass, a shoe and broken glass about five feet in from the east edge of the pavement; that he found marks from a wheel or tire starting south about ten feet from where the glass and shoe were found, and about two feet east of the center line; that the marks extended 206 feet; that the body of decedent was about 40 feet from the point of beginning of these marks, and about five feet west of the west edge of the pavement; that he noticed a Chevrolet coupe mired down in a side road, facing northeasterly. This witness also stated that he asked defendant what happened and the latter stated that he was traveling north at about 50 miles per hour when all at once he observed this man in front of his car, that he applied his brakes about the time he hit the man and then drove off to the side of the road and stopped and went over to the body; that a woman appeared on the scene who was very hysterical, and that when he observed the man it was too late to keep from hitting him.
The only other witness called by plaintiffs to testify to anything connected with the accident was a Miss Hansen, who was the woman referred to by Mr. Muller and defendant who had appeared at the scene of the accident. She testified that she knew decedent, that she could remember coming toward Marysville on her way home to Oroville where she was living; but as to all other matters connected with the accident she stated that she had no recollection; that she did not remember her car being bogged down in the mud; that she did not remember seeing Mr. Anthony get out of the car and try to stop a car to help her out of the ditch; that she did not know that anything of that kind happened; that she remembered that there was a coroner’s inquest after the accident, and that she then testified but was in a hysterical condition. At this point counsel for plaintiffs sought to impeach this witness on the ground that her testimony had taken him by surprise. He then asked the witness if she had not testified at the inquest that she was traveling in a car with Mr. Anthony on January 31st, and that she then witnessed an accident; that they got stuck and he got out to get assistance, etc. The witness answered that she did not remember giving those answers. To all other questions regarding whether she had given certain answers to questions put to her at the inquest, she answered that she did not recall them. She was asked if, when she was served with a subpoena to testify in this case, she had not stated that if she came to court she wouldn’t testify to anything to help Mrs. Anthony--that she didn’t like them. She answered that she had not so stated, but had said that if she had to go to court and testify, her testimony would not do any good--that she could not remember any statements. She said that she had no recollection as to what happened the morning of the accident. On cross-examination she again stated that she had no recollection of any of the events of the day or night--and on redirect she said she did not remember a thing, that she didn’t recall the case.
Defendant’s counsel moved to strike out all of the testimony of this witness relating to impeachment concerning the reading to her of questions put to her and her answers at the inquest. This request was granted as to the testimony at the coroner’s inquest, and the jury were instructed to disregard all the questions and answers given by the witness at the inquest.
At the close of plaintiffs’ testimony defendant’s counsel made a motion for a nonsuit, which was denied. He then called two witnesses in an effort to show that the stomach of decedent after the accident contained a small amount of alcohol, but their testimony is not important on this appeal. Defendant’s counsel then read to the jury the testimony of Miss Jean Wilson which with the consent of plaintiffs’ counsel had been introduced by him on behalf of defendant prior to the introduction of any testimony for plaintiffs. This witness testified that on the night of the accident she was driving north on Highway 99E; that after she passed the Sierra View Memorial Park (which was near the scene of the accident) she saw a man standing in the middle of the highway not over a foot from the white line, "in a very leaning condition, with his hand waving in the air"; that he was on the right side of the road; that he was in between one or two of the fog pockets on the highway; that if she had not been going at a slow rate of speed she would have hit him, but she went around him clear over on the left side going north; that there was a car following her and she turned up her mirror to keep the headlights from shining in her face, and as she did so saw this man; that he was facing the direction from which she was coming; that before she saw him she saw three cars parked off to the east; that one of them was about where the man was hit and was backed up into a ditch with the lights shining on the highway, and further down there were two more cars back of where she saw the man in the highway; that she had arrived at this spot between 1:30 and 2 o’clock; that her car was running badly and she had to travel in second gear and was going about 20 miles per hour; that she did not see the man in the road until she drove up to him; that he was not in a fog bank; that she left him standing in the center of the highway.
Defendant’s counsel introduced in evidence Ordinance 106 of Yuba County with reference to anyone’s being on the public highway in Yuba County in an intoxicated condition, and then rested. On rebuttal plaintiffs called a pathologist who testified that the amount of alcohol in decedent’s stomach would give no idea as to the amount that might be in the brain, and that it wouldn’t be important in itself, as far as intoxication was concerned.
At the conclusion of the rebuttal testimony defendant’s counsel made a motion for a directed verdict. The court took it under advisement, but subsequently granted the motion, saying: "It is pretty well settled that where the evidence of the plaintiff himself is such as to show what actually took place, the conditions and so forth, at the time of the accident, that if that evidence is irreconcilable or inconsistent with the presumption in question, to-wit: the presumption that the deceased used due care for his own safety, then the presumption disappears, providing of course, that is shown by the testimony of the witnesses produced on behalf of the person relying on the presumption. Now that being the settled rule as the Court understands it, I think we have here a clear case that shows what happened and shows it by the plaintiffs’ witnesses. I think the Court can say the evidence shows without question, negligence on the part of the deceased. As far as saying negligence as a matter of law, and that being established by plaintiffs’ evidence, the testimony of the witness Muller and the witness Williams, there is no room for the presumption. The presumption goes out. Therefore the facts and circumstances shown here, I can see no alternative but to grant the motion." The jury were instructed accordingly and a verdict for defendant was returned.
It is contended on this appeal that the trial court committed reversible error in directing a verdict for defendant and also in granting defendant’s motion to strike with respect to the testimony of Miss Hansen. In support of the first of these contentions appellant argues that the presumption that deceased exercised ordinary care for his own safety while on the highway was evidence in behalf of plaintiffs, that there was no testimony offered by plaintiffs’ witnesses Muller and Williams inconsistent with this presumption, "that deceased could not be chargeable with contributory negligence as a matter of law, because the presumption of due care is in itself evidence, and there was no positive or direct testimony as part of plaintiffs’ case indicating or proving what the deceased did or did not do before he was struck and killed by defendant’s automobile, to the extent that under any conceivable theory, the presumption of due care was out of the case"; and that the question of contributory negligence on the part of the deceased which in anywise or in the slightest degree contributed to his death was one of fact for the jury and not the court to decide. In support of this contention appellants cite Smellie v. Southern P. Co., 212 Cal. 540, 299 P. 529; Rogers v. Interstate Transit Co., 212 Cal. 36, 297 P. 884; Mar Shee v. Maryland Assurance Corp., 190 Cal. 1, 210 P. 269; Westberg v. Willde, 14 Cal.2d 360, 94 P.2d 590; Downing v. Southern P. Co., 15 Cal.App.2d 246, 59 P.2d 578; Ellison v. Lang Transportation Co., 12 Cal.2d 355, 84 P.2d 510; Kelly v. Fretz, 19 Cal.App.2d 356, 65 P.2d 914; Ramsey v. Pasini, 108 Cal.App. 527, 291 P. 884; Roselle v. Beach, 51 Cal.App.2d 579, 125 P.2d 77; Speck v. Sarver, 20 Cal.2d 585, 128 P.2d 16; Noble v. Key System, Ltd., 10 Cal.App.2d 132, 51 P.2d 887; Gorman v. Sacramento County, 92 Cal.App. 656, 268 P. 1083; Dull v. Atchison, T. & S. F. R. Co., 27 Cal.App.2d 473, 81 P.2d 158; Duehren v. Stewart, 39 Cal.App.2d 201, 102 P.2d 784; Kelley v. City and County of San Francisco, 58 Cal.App.2d 872, 137 P.2d 719; Geisler v. Rugh, 19 Cal.App.2d 738, 66 P.2d 671; and Cook v. Los Angeles R. Corp., 13 Cal.2d 591, 91 P.2d 118.
Respondent, on the other hand, argues that under the authority of the very cases relied upon by appellant, the presumption of due care on the part of deceased was dispelled; that, disregarding the testimony of defendant, the testimony of Muller and Officer Williams produced by plaintiffs shows that deceased was directly in defendant’s traffic lane when he was struck, a place where he had no right to be, and that the testimony of these witnesses dispelled the presumption, since it was wholly irreconcilable with the presumption sought to be invoked.
From the cases cited and relied upon by appellant the rule seems to be well established that where testimony--exclusive of the testimony of a defendant called under section 2055 of the Code of Civil Procedure--adduced by a plaintiff shows contributory negligence on the part of a decedent there is no room for the presumption that such decedent took ordinary care of his own concerns. The question before us is, therefore, whether in this case plaintiffs produced testimony, exclusive of the testimony of defendant, which dispelled the presumption, and, therefore, left no conflict necessarily determinable by the jury. Mr. Muller’s testimony shows that on the night of the accident, after defendant started on his way north, he followed defendant’s car for three or four miles, being about 75 yards behind it; that he heard a noise that seemed like a thud, and saw an object flying across the highway which he detected was a man’s body; that when he looked across the road this man’s body was lying there; that defendant was on the right side of the highway when the witness saw him strike the man whose body flew across the highway; that he did not see deceased before he was struck. Mr. Williams, the state traffic officer, testified that at the scene of the accident he found a broken eyeglass, a shoe and broken glass from a headlight, about five feet in from the east edge of the pavement, and there was also some foreign substance on the pavement at that spot; that he also noted marks on the highway which he said might have been made by the flat left hand tire of defendant’s car, which marks began 2.7 feet east of the center line of the highway. He stated, also, that defendant told him that he was traveling north and all at once he observed Anthony in front of his car, that he applied his brakes about the time he hit him, then drove off to the side of the road and stopped, and that when he observed the man it was too late to keep from hitting him.
This testimony compels the conclusion that at the time he was struck by defendant’s car Anthony, in the middle of the night, was standing in defendant’s lane of traffic, obviously a place of danger. We agree with the conclusion of the trial court that this evidence dispelled the presumption of due care on the part of decedent. In Mar Shee v. Maryland Assurance Corporation, supra, testimony which was held sufficient to dispel the presumption that the shooting of decedent was accidental and not criminal was testimony that decedent was shot twice. The court said that this led inevitably to the conclusion that the person who did the shooting intended to shoot either the decedent or some other person for whom he mistook decedent, and that the presumption of innocence was thus dispelled. In Dull v. Atchison, T. & S. F. R. Co., 27 Cal.App.2d 473, 477, 478, 81 P.2d 158, 161, the court said:
"From the facts as they are contained in the record, it appears that the deceased approached an open railroad crossing with a clear view of the tracks in both directions from a point sixty feet away from the crossing; that as she approached the railroad tracks she slowed down to about two miles per hour, and then drove up a short incline and onto the tracks, where she was struck by the train. Driving an automobile which the appellant, who was the owner thereof, testified could be stopped within twelve or fourteen feet when going twenty miles per hour, and within about nine feet when going twelve or fifteen miles per hour, we find the deceased, according to the evidence, going twenty miles per hour when within five hundred feet of the crossing in question, and at a much slower speed for the last sixty feet, with an unobstructed view, still continuing to drive up to and upon the track in the face of the fast approaching train. With this picture, it would be idle to attempt to show ordinary care or prudence upon the part of the deceased. As a matter of fact, in order to justify the conduct of the unfortunate decedent, we would be first compelled to overrule every known California case involving accidents at railroad crossings. Appellant relies largely upon an indulgence of the presumption of ordinary care and diligence on the part of decedent from all the circumstances of the case and the natural instinct of self-preservation--and contends that because thereof the motion for a directed verdict should have been denied. However, this presumption arises only in the absence of direct proof of the facts. The circumstances of this case alone are sufficient to rebut the presumption claimed." In Mundy v. Marshall, 8 Cal.2d 294, 296, 65 P.2d 65, 66, it is stated: "There is only one reasonable conclusion to be drawn from the facts established by the testimony of the plaintiff’s own witness. A pedestrian who crosses a well-lighted thoroughfare other than on a crosswalk, in a diagonal line and with his back partly turned to approaching traffic and is struck by a car approaching from the quarter from which traffic was to be expected is obviously not exercising the vigilance the law requires of him. Sheldon v. James, 175 Cal. 474, 166 P. 8, 2 A.L.R. 1493; Atkins v. Bouchet, 65 Cal.App. 94, 223 P. 87; Miss v. [H. R.] Boynton Co., 44 Cal.App. 474, 186 P. 631; Thompson v. White, 56 Cal.App. 173, 204 P. 561. The manner in which the decedent was crossing the street having been covered by the plaintiff’s own evidence, there is no room for the operation of the presumption that he was exercising due care (Paulsen v. McDuffie, 4 Cal.2d 111, 47 P.2d 709), and it cannot be relied upon to establish a conflict in the evidence."
In the instant case, the presumption of due care on the part of decedent having been dispelled, the trial court, on the evidence before it, properly directed a verdict for defendant.
As to appellant’s contention that the trial court erred in striking out the testimony of plaintiffs’ witness Inez Hansen, in view of our conclusion that the trial court properly directed a verdict for defendant this contention is unimportant. However, since the only testimony given by this witness was that she had no recollection of the events of the night of the accident, she testified to nothing that was either favorable or unfavorable to plaintiffs. And while, in an effort to impeach her on the ground that plaintiffs were taken by surprise, she was asked if she had not made certain statements at the coroner’s inquest, had these statements been left in the record they would have availed nothing, for it is well established that when a witness is impeached by proof of inconsistent statements the effect is merely to discredit the witness and any testimony given by him at the trial. The former statements are incompetent for any other purpose. See Lopez v. Wisler, 58 Cal.App.2d 455, 462, 136 P.2d 816, and cases there cited. Plaintiffs were, therefore, not injured by the action of the trial court in striking out the matter which was read from the transcript of testimony taken before the coroner’s jury.
The judgment is affirmed.
PEEK and THOMPSON, JJ., concur.