Such a situation is clearly distinguishable from the case at bar. Plaintiffs rely also upon Pate v. Pickwick Stages System, 125 Cal.App. 670 [ 14 P.2d 174]; Binford v. Purcell, 2 Cal.App.2d 87 [ 37 P.2d 732]; Armstrong v. Studer, 2 Cal.App.2d 166 [ 37 P.2d 475]; Falasco v. Hulen, 6 Cal.App.2d 224 [ 44 P.2d 469]; Flynn v. Kumamoto, 22 Cal.App.2d 607 [ 72 P.2d 248], and Wright v. Ponitz, 44 Cal.App.2d 215 [ 112 P.2d 25]. None of these cases determine that the particular conduct in question constituted negligence as a matter of law. On the question of negligence each simply holds that the evidence is sufficient to support the trial court's factual determination that the respective acts constituted negligence under the circumstances.
( Skaggs v. Wiley, 108 Cal.App. 429 [ 292 P. 132]; Ingram v. Wessendorf, 14 Cal.App.2d 16 [ 57 P.2d 989].) [5] Appellants urge that Malcewicz was guilty of negligence as a matter of law because of the fact that he ran into the rear of the Berkes' car, citing such cases as O'Connor v. United Railroads, 168 Cal. 43 [ 141 P. 809]; Edlund v. Los Angeles Ry. Co., 14 Cal.App.2d 673 [ 58 P.2d 928]; Nicholson v. Porter, 118 Cal.App. 555 [ 5 P.2d 659]; Binford v. Purcell, 2 Cal.App.2d 87 [ 37 P.2d 732]. These cases do not stand for the broad principle contended for by appellants.
"* * * The plaintiff might well contend that when the defendant was in a place of safety he saw a car approaching from the north; that it was midnight and his powers of vision and measuring distances were thus greatly limited; and that notwithstanding these circumstances he intentionally and deliberately turned his eyes from the on-coming car and looked in the opposite direction, and, keeping his outlook in that direction, proceeded in low gear to make the turn and in doing so drove into the path of the on-coming car without again looking to see how close it was." In Binford v. Purcell, 2 Cal.App.2d 87, 37 P.2d 732, plaintiff was a guest of the defendant. The case did not involve a left turn. It involved lookout.
Lawrence v. Troy, 133 Or. 196, 289 P. 491; Rogers v. Portland Ry., Light Power Co., 66 Or. 244, 134 P. 9. There being nothing in the circumstances which served to warn her to be on the qui vive, even the fact that she was day-dreaming was not evidence of negligence on her part. Sternberg Dredging Co. v. Screws, 175 Miss. 383, 166 So. 754; Binford v. Purcell, 2 Cal.App.2d 87, 37 P.2d 732. There was no evidence that the driver of the car was incompetent, or that he was not driving in a careful or proper manner. Under those circumstances, the facts that the plaintiff was relaxed, was giving herself up to the enjoyment of the trip, and was even day-dreaming, are no evidence whatever that she was guilty of contributory negligence.
On appeal the trial court's ruling was sustained. See, also, Crawford v. Rose, 2 Cal.App.2d 734, 737-738, 39 P.2d 217; Binford v. Purcell, 2 Cal.App.2d 87, 91, 37 P.2d 732; Fugelsang v. Steiner, 115 Cal.App. 167, 174-175, 1 P.2d 553; Hedding v. Pearson, 76 Cal.App.2d 481, 173 P.2d 382; Oettinger v. Stewart, 24 Cal.2d 133, 139, 148 P.2d 19, 156 A.L.R. 1221; Queirolo v. Pacific Gas & Electric Co., 114 Cal.App. 610, 615-616, 300 P. 487; Swink v. Gardena Club, 65 Cal.App.2d 674, 680-681, 151 P.2d 313; Dowd v. Atlas Taxicab and Auto Service Co., 187 Cal. 523, 202 P. 870; Lowe v. Lee, 95 Cal.App.2d 685, 213 P.2d 767. However, in this action, in connection with the contributory negligence and imputed negligence instructions offered by defendants and given, plaintiffs also offered an instruction on the same subject.
Under the rules governing the direction of verdicts by the court, a recital of which is unnecessary, plaintiff's contributory negligence was clearly established. Cases in which motorists have been held guilty of negligence as a matter of law for running into vehicles which were stationary or slowly moving along streets in front of them are Christy v. Herbert M. Baruch Corp., 135 Cal.App. 355 [ 27 P.2d 660], Nicholson v. Porter, 118 Cal.App. 555 [ 5 P.2d 659], and Binford v. Purcell, 2 Cal.App. (2d) 87 [ 37 P.2d 732]. The views we have expressed find support in these cases, which fully justify the action of the trial court in directing a verdict for the defendants in the instant case.