Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. 06 CE CG 03073, Alan Simpson, Judge.
Rudloff Wood & Barrows, Douglas K. Wood, Dianne J. Meconis; Jacobson, Hansen, Najarian & McQuillan and Charles J. Cherrington for Defendant and Appellant.
Sawl & Netzer, John R. Malmo and H. Ronald Sawl for Plaintiff and Respondent.
OPINION
VARTABEDIAN, J.
Defendant and appellant Felicito Geronimo appeals from a judgment entered against him after a jury verdict in favor of plaintiff and respondent Armando Correl. The action for damages arose from a traffic accident. The appeal raises issues concerning jury instructions on theories of negligence and the trial court’s exclusion of a witness’s testimony. We will affirm the judgment.
Facts and Procedural History
McKinley Avenue in Fresno had been closed between Cornelia and Polk Avenues while a private contractor made street improvements in conjunction with development of adjacent residential subdivisions. This portion of the road may or may not have still been closed on the date of the accident, as there was conflicting evidence in that regard.
Respondent was traveling east on McKinley and passed through the intersection of McKinley and Cornelia. There had been “road closed” signs affixed to folding barricades on the east side of that intersection, but respondent testified that on the day of the accident, the barricades mostly had been stacked at the edge of the street and that he followed another car through the open lane of travel. (By contrast, the responding police officer testified she drove to the accident scene by another route because McKinley was closed from Cornelia to Polk.)
Appellant requests we take judicial notice of a document entitled “California Sign Chart,” published September 2006 by the California Department of Transportation. We take judicial notice of the chart; we are not asked to and do not take judicial notice of the legal effect of the placement of any particular sign.
Polk Avenue is the next major intersection as McKinley continues to the east. At the west side of the intersection of McKinley and Polk, barricades were still in place on the day of the accident. The “road closed” signs were affixed to the east side of the barricades so that the signs were not visible to respondent as he drove east. The evidence was in conflict about the size of a gap between the barriers, but it was undisputed that respondent was able to continue on McKinley without, for example, stopping to move aside a barrier.
Respondent, traveling at about 55 miles per hour, proceeded into the intersection of Polk and McKinley. Appellant, traveling south on Polk, ran the stop sign at McKinley and rammed the rear portion of respondent’s vehicle. Appellant was traveling about 15 miles per hour when he entered the intersection. Respondent’s vehicle rolled over three times, injuring respondent.
At trial, appellant contended he stopped at the stop sign and did not see respondent on McKinley because he was looking at the “road closed” signs and did not expect traffic from that direction. The jury verdict implies the jury found, in accordance with other evidence (including appellant’s statement at the scene that he did not see the stop sign), that appellant ran the stop sign.
Respondent sued appellant for personal injury and property damages. By special verdict, the jury found appellant was negligent and that his negligence was a substantial factor in causing harm to respondent. It found respondent was negligent but that his negligence was not a substantial factor in causing injury to himself. It awarded respondent damages in the amount of $538,564.42.
Appellant filed a timely notice of appeal.
Discussion
I. Jury Instruction Issues
Appellant contends the court erred in failing to instruct the jury on appellant’s theory that respondent was negligent per se in driving on a closed road, in instructing the jury on right-of-way principles, and in instructing the jury concerning the applicable speed limit. Appellant has failed to demonstrate that any of the claimed errors was prejudicial.
Appellant contends he requested several jury instructions concerning negligence per se based upon his theory that respondent disobeyed traffic control signs and devices by traveling on a closed road. Although the record is unclear whether the court refused the instructions or appellant withdrew them, we will assume for purposes of discussion that the instructions were requested and refused.
There are no markings on these particular instructions in the “Instructions Not Given” packet, and there is no mention of the instructions when the court discussed the instructions conference with counsel for the parties.
Evidence Code section 669 codifies the doctrine of negligence per se. It provides that the failure of a person to exercise due care is presumed if (as applicable here) the person violated a statute, the violation caused death or injury, “the death or injury resulted from an occurrence of the nature which the statute … was designed to prevent” and the person suffering death or injury was a member of the class of persons for whose protection the statute was adopted.
Evidence Code section 669 establishes a presumption of negligence. (6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 873, p. 103.) Thus, even if the instructions had been given, the most appellant would have gained was a presumption the jury could apply to find respondent responsible for a portion of his damages by virtue of the doctrine of comparative negligence.
The jury, even though not instructed with the negligence per se instruction, nevertheless found respondent negligent. In other words, the jury arrived at exactly the conclusion appellant sought by requesting the jury be instructed on negligence per se. Further, the jury specifically found that respondent’s negligence was not “a substantial factor in causing his harm.” Thus, the verdict establishes that the jury rejected the second element of appellant’s negligence per se theory under Evidence Code section 669, that the violation of the statute proximately cause the injury. (See Evid. Code, § 669, subd. (a)(2).)
Instructional error can result in reversal of a judgment only if, “after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Cal. Const. art. VI, § 13.) “Instructional error in a civil case is prejudicial ‘where it seems probable’ that the error ‘prejudicially affected the verdict.’” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580.) Here, because the jury made the same negligence finding it might have made under the requested instruction and because the jury separately found no causal link between respondent’s negligence and his injury, the failure to give the requested instruction did not result in a miscarriage of justice.
Appellant mistakenly contends that the jury’s otherwise “inexplicable” finding that respondent’s negligence was not a cause of respondent’s injury can only be explained by speculation that the jury found defendant was only slightly negligent in exceeding the speed limit by five miles per hour. Appellant says the jury would have found causation of injury if had been instructed that driving on a closed road is negligence per se. This, however, confuses the issues of negligence and causation: if the jury found respondent a “little” negligent and therefore slightly contributed to his own injuries, one might conclude that if it had found him “a lot” negligent, it might have imposed a greater percentage of causation of injury upon him. But if respondent’s negligence was not a cause of injury at all, it does not matter whether he was very negligent or only slightly so.
Appellant also contends the court erred by instructing the jury that appellant had a duty to yield the right of way “to any vehicles which have approached from another highway, or which are approaching so closely as to constitute an immediate hazard.” He contends the term “highway” is a technical term that applies, as applicable here, only if the roadway is “open to the use of the public for purposes of vehicular travel,” as stated in Vehicle Code section 360. Appellant says that without this limitation being disclosed to the jury, it could have determined appellant was negligent for not yielding to a vehicle coming out of a closed road; he says he was not required to yield to such a vehicle.
Respondent’s primary theory of liability was based on his contention appellant had run a stop sign as he entered the intersection. In the same instruction about which appellant complains, the court instructed, in effect, that failure to stop at a stop sign is negligence per se.
Appellant’s contention ignores the limited import of the challenged portion of the instruction. That portion is applicable only after the driver has stopped at the stop sign in accordance with law. In other words, the instruction, based on Vehicle Code section 21802, subdivision (a), is meant to make clear that merely stopping at a stop sign does not fulfill the driver’s duty of care. Even after stopping, the driver may proceed into the intersection, in essence, only if it is safe to do so. As the jury was separately instructed: “Even if someone has the right-of-way, that person must use reasonable care to avoid an accident.” Additionally, any concern about limiting the meaning of a “highway” is diminished by the disjunctive language used: the duty is to yield to a vehicle approaching from another highway or one so close as to constitute an immediate hazard.
Respondent’s entry into the intersection in this case, whether the road was open or closed, simultaneously and necessarily placed him so close to appellant as to constitute an immediate hazard. While it is very probable that the jury determined (in accordance with the overwhelming weight of the evidence) that appellant ran the stop sign (rendering the contested portion of the instruction wholly irrelevant), it is not reasonably possible in the present case that the jury could have distinguished between the “highway” and “close encounter” bases for a duty to yield right-of-way. Any failure of the court to instruct on the “highway” issue was not prejudicial.
Finally, appellant contends the court erred in instructing the jury that the speed limit “'where the accident occurred’ was 50 miles per hour.” Appellant concedes there was uncontroverted evidence that the speed limit “on McKinley, before the barricades, was 50 miles per hour.” But he contends there “was no evidence regarding the speed limit” in the intersection where the accident occurred. To the contrary, evidence of the speed limit on McKinley was evidence that the speed limit was 50 miles per hour for traffic on McKinley in the total absence of evidence that there was a reduction of the posted limit in the vicinity of the intersection. The court did not err in giving the instruction concerning the speed limit.
II. Excluded Evidence
Appellant called as a witness Brian Carr. Respondent objected. There was a preliminary foundational hearing outside the presence of the jury in which Carr testified. (See Evid. Code, § 402.) He said he had been a project manager for KB Homes. His office was at the corner of McKinley and Polk. Carr testified that when he came in to work mornings, he came through the McKinley and Cornelia intersection and often had to “slid[e] barricades back in place.” If there was a significant amount of restoration to be done, he would contact the contractor who was doing the work on McKinley and have it make the repairs. In the evening, he usually made sure the barricades were blocking the Polk end of the project as he left his office. Carr also testified he did not know if the city’s road-closing permit was in effect on the date of the accident, that he had no recollection of his actions on the day of the accident, that he usually did not check the Cornelia end of the project as he left work, and that he did not return to the site to check the barricades if he was otherwise away from the site at the end of the workday.
At the conclusion of the hearing, the court ruled Carr’s testimony inadmissible. The court stated that the testimony did not establish a custom and practice concerning the barricades that would permit an inference that they were in any particular place on the day of the accident. (See Evid. Code, § 1105 [“Any otherwise admissible evidence of habit or custom is admissible to prove conduct on a specified occasion in conformity with the habit or custom.”].)
“The question whether habit evidence is admissible is essentially one of threshold relevancy [citation]; it is addressed to the sound discretion of the trial court.” (People v. McPeters (1992) 2 Cal.4th 1148, 1178.) Here, the evidence at most supported an inference that the barricades had been reinstalled at the Cornelia intersection on the morning of the accident; however, the same evidence required an inference that the barriers were out of place most mornings. There was no evidence addressing the timing of their almost-daily removal, except, by inference, that it happened after Carr went in to work.
Whether there were barriers at the Polk intersection, which Carr’s testimony more clearly addressed, was not contested, even though the evidence of their exact placement was in some conflict. But all of the evidence showed that there were no “road closed” signs on the back of the barricades (i.e., facing the direction from which respondent came) and, in any case, there is no claim that the Polk intersection was itself closed.
The trial court was correct that Carr’s proffered testimony was insufficient to establish that he had a habit or custom of replacing the barriers at Cornelia at the end of each day. That would have been the only issue on which the evidence was relevant and not cumulative. The court did not abuse its discretion in excluding the evidence.
Disposition
The judgment is affirmed. Respondent is awarded costs on appeal.
WE CONCUR: ARDAIZ, P. J., CORNELL, J.