Opinion
Hearing Granted by Supreme Court Nov. 21, 1927.
Appeal from Superior Court, Alameda County; E. C. Robinson, Judge.
Action by Eleonore Dullanty against Ashley Smith. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
COUNSEL
Cooley & Gallagher, of San Francisco, for appellant.
Ralph H. Lachmund, of San Francisco, for respondent.
OPINION
STURTEVANT, J.
The plaintiff commenced an action against the defendant to recover damages for injuries alleged to have been suffered in an automobile accident. The defendant answered and a trial was had in the trial court before the court and a jury. The jury returned a verdict in favor of the plaintiff. The defendant made a motion for a nonsuit, and his motion was denied. He has appealed from the judgment, under section 953a of the Code of Civil Procedure.
In drawing her complaint, the plaintiff followed the form used by the plaintiff in Stein v. United Railroads, 159 Cal. 368, 113 P. 663. In his answer the defendant denied many of the plaintiff’s allegations, and also pleaded affirmatively the contributory negligence of the plaintiff.
The accident occurred in Alameda on the 25th day of March, 1924. On that day it had been raining, and there were some puddles of water on the street. The plaintiff was proceeding along the south side of Grand avenue in an easterly direction. About the time that she approached the intersection of Grand avenue and Webster street, automobiles were parked parallel to the sidewalk on both angles of the four corners of the crossing. Each street is 66 feet wide. Automobiles are 5 feet wide. The traveling space was therefore about 56 feet wide. The evidence discloses that, about the time the plaintiff reached Webster street, the defendant was traveling south on Webster street, approaching the plaintiff from her left. At the same time Mr. Rinderneck was traveling north on Webster street, and approaching the plaintiff from her right. All of the evidence as to how the accident occurred was given by Mr. Rinderneck, Mr. Ashley Smith, the defendant, and Mr. Earl Smith, the defendant’s brother, who was riding in the automobile with the defendant.
As defendant approached Grand avenue, an automobile crossed Webster street in front of him, traveling west on Grand avenue, and another 100 feet back was traveling in the same path. No other vehicles or other pedestrians appear to have been using the street at the time of the accident. The defendant saw the plaintiff start to walk from the westerly curb of Webster street easterly. At that time both were about equidistant from the point where the collision occurred. The plaintiff was walking at an ordinary speed or faster, and had her head up looking straight ahead. She had hold of her skirts, apparently holding them up to keep them dry. When she had passed the center line of Webster street, she paused, turned her head in a northerly direction, and about that time the impact occurred. The defendant was attempting to pass in front of the plaintiff. There is no evidence that the automobile of the defendant was traveling more than 15 or 18 miles per hour as it approached Grand avenue. The evidence discloses that its speed was reduced as it entered the intersection, and was as low as 7 or 8 miles as it passed over the intersection, and that the defendant put on his brakes several times, and finally put them on more severely immediately before the impact. The last time that the brakes were applied the defendant’s car skidded about 3 feet and then came to a standstill. In the meantime the impact occurred. When the defendant’s car had come to a complete standstill, the plaintiff’s body was about 5 feet to the rear and slightly to the right of the defendant’s machine; her feet pointed toward the machine and her head away from it. At the same time the left front fender of the defendant’s car was in immediate contact, if not entangled, with the left rear fender of Mr. Rinderneck’s car. At this same time the defendant’s car was standing diagonally with its left front wheel on the easterly side of Webster street; that is, on the defendant’s left-hand side of the road. No witness testified that he saw the plaintiff look to the right or the left before she entered Webster street. No witness testified that she did not do so.
The plaintiff, testifying in her own behalf, gave testimony to the effect that before the accident she came to the crossing looking for a certain vine-covered house; that she crossed over Webster street and stood on the southeast corner. While standing there, her memory became a blank, and she recalled no facts whatever until several days later in an Oakland hospital.
The defendant complains that the evidence was insufficient to prove negligence on his part. The record is such that it is clear an argument to that effect could be made to the jury. It is equally clear that the reverse contention could be made to the jury. Furthermore, it is equally clear that the case is by no means so clear that any court could properly say that there was no evidence of negligence on the part of the defendant. In making this point the defendant speaks of the willful act as defined in one of the court’s instructions. That element will be discussed when we reach that instruction.
The next point made by the defendant is that the negligence of the plaintiff proximately contributed to the happening of the accident. That point is hardly involved. As will be seen from what is written above, no witness observed the plaintiff until after she had left the curb. She testified to a set of facts purporting to explain why she did not remember what she had done, but did not claim to testify as to what she actually did do. The only evidence touching the subject of the care exercised by the plaintiff was therefore of the nature of indirect evidence consisting of inferences and presumptions. The solution of those matters was for the jury.
Before the case was called for trial the plaintiff took the deposition of the defendant. At the time of the trial the plaintiff’s attorney stated that he offered the deposition in evidence and that he expected to read it to the jury. The document is not before us, as it has not been certified up, and neither is it included in the transcript. It appears that the deposition was taken pursuant to a stipulation. The terms of the stipulation are not set forth in the record. Before Mr. Carey, the plaintiff’s attorney, commenced to read, Mr. Gallagher, the attorney for the defendant, interposed no objection to the deposition as a whole, or any part thereof. Mr. Carey was entitled to offer the deposition as a whole; he was not entitled to offer merely a part. Bank of Orland v. Finnell, 133 Cal. 475, 65 P. 976. If the defendant had any objection to any part, upon request, no doubt, he would have been allowed to mark the objectionable portions and submit his objections for a ruling. This he did not do. As the reading proceeded, Mr. Gallagher interrupted the reading by addressing the trial court and asking the judge thereof to "read the next 10 or 15 questions and answers of the deposition. We will object to the reading of them to the jury as incompetent, irrelevant, and immaterial." The transcript contains a colloquy between court and counsel, but the statements are so worded that we cannot ascertain what was objected to. Mr. Carey read further. Another colloquy. Same condition of the record. Then Mr. Carey read further, and there was another colloquy. The condition of the record is the same. On this last occasion Mr. Gallagher made a motion to strike out. There was another colloquy. The motion was granted, and the jury was thereafter twice admonished in the clearest language possible that the matter which had been stricken out should not be considered.
The defendant now presents the incident as prejudicial error. If we gather the correct understanding of the condition of the record, the error was committed by the defendant. If he had marked the deposition as he should have done, and had called to the attention of the court the passages so marked, nothing regarding the defendant’s insurance would have come into the record, nor would it have come into the record if the defendant had made a timely objection. Both of the statements are made on the assumption that there was a legal objection to the matter that was stricken out. Dameron v. Ansbro, 39 Cal.App. 289, 298, 178 P. 874, and cases there cited. However, those authorities are applicable to a set of facts quite different from the facts in the instant case.
Immediately after the accident this defendant made a report to his insurance carrier. He also made a report to the police department. Thereafter the plaintiff’s daughter invited him to call at her home. He called and found several persons in attendance. Thereupon those present proceeded to propound to the defendant various questions as to how the accident had occurred. He declined to answer some of the questions, saying that he had made a report to his insurance carrier and that the questions should be propounded to the insurance company. The plaintiff was clearly entitled to examine the defendant regarding that conversation. Code Civ. Proc. § 1870, subd. 2. The defendant assumed that because the conversation contained some reference to the fact that he carried insurance rendered the conversation inadmissible. The correct rule is that, if the conversation was admissible for any purpose, it should have been received, notwithstanding that it contained some material which under other circumstances would be objectionable. I. Upham Co. v. United States, etc., Co., 59 Cal.App. 606, 610, 211 P. 809. Moreover the evidence stricken out included all reference to the report made to the police department. The defendant does not even claim that there was any legal objection to that report, in so far as it might have contained any evidence against the defendant or inconsistent with the evidence given by him in the trial court.
Over the objection of the defendant evidence was received which disclosed that at the time of the accident the plaintiff was injured by having two teeth knocked out; that her shoulders, neck, head, and throat were black; that for three days she suffered lapses of memory, and thereafter that she had a loss of memory which she did not have before the accident. In her complaint she alleged that she suffered "severe concussion of the brain, *** severe contusions of chest, left cheek, arms, and legs; ***" that she suffered "*** great physical pain and anguish and a severe shock to her nervous system, and she will be permanently injured and disfigured as a result of her said physical injuries." The evidence received was within the allegations pleaded. Lauder v. Currier, 3 Cal.App. 28, 84 P. 217; Fogg v. Kansas City, 187 Mo.App. 252, 173 S.W. 712, 713; Colorado Springs & I. Ry. Co. v. Allen, 48 Colo. 4, 108 P. 990; Fitzgerald v. City of Chicago, 144 Ill.App. 462.
The trial court, at the request of the plaintiff, instructed the jury as follows:
"I instruct you that a person lawfully and carefully using a street has the right to assume that all other persons using the street will also use ordinary care and caution. This rule allows pedestrians to assume that motor vehicle drivers will obey and abide by the traffic laws and regulations."
The defendant asserts that the giving of that instruction was error and cites McPherson v. Walling, 58 Cal.App. 563, 209 P. 209. The citation is a case involving facts altogether different from the facts in the instant case. We think the trial court committed no error in giving the instruction.
On the request of the plaintiff the trial court gave the following instruction:
"One of the defenses imposed by defendant in this case is the plea of contributory negligence. Contributory negligence is an affirmative defense by way of confession and avoidance. By pleading it the defendant in effect confesses his own negligence, and pleads by way of avoidance thereof that plaintiff’s own negligence helped to produce his injuries."
The defendant claims that the instruction is erroneous. The Supreme Court, in a divided opinion on an application to transfer, held otherwise. Mulholland v. Western Gas Constr. Co., 21 Cal.App. 44, 52, 131 P. 110, 113. The court is bound by that decision. However, it is patent that the instruction should not be given when it has been approved only by a divided court. Such decisions do not have the binding weight of other decisions. 15 C. J. 938, § 326.
The trial court gave the jury, on the request of the plaintiff, an instruction defining reckless driving. See Stats. 1923, p. 517, § 121. The defendant cites Tognazzini v. Freeman, 18 Cal.App. 468, 123 P. 540, and claims that the instruction was error. It will be noted that the instruction was not to the effect that the defendant was liable if he willfully and knowingly ran his automobile against the plaintiff. The instruction contains other factors and is on a different subject. The authority cited is not in point.
The trial court gave a long instruction, which covers more than page 276 of the transcript. The defendant assigns the giving of that instruction as error. It will do no good to quote it. Reading it most carefully, and assigning to it a meaning no broader than is actually written therein, the instruction is not subject to the objections which the defendant makes.
The trial court also gave, at the request of the plaintiff, an instruction worded as follows:
"The Motor Vehicle Law also provides as follows: ‘Every motor vehicle when operated upon the public highways shall be equipped with a bell, gong or horn in good working order capable of emitting sound audible under normal conditions for a distance of not less than two hundred feet.’ It is the duty of the driver of an automobile to give notice of the approach of said automobile towards pedestrians or other vehicles using the same highway by seasonable warning signal, such as sounding a horn in sufficient time to give timely warning to other persons using said street of the approach of said automobile, and a failure to comply with this requirement of law constitutes negligence in itself. If you find from the evidence in this case that the defendant failed to comply with this requirement of law, and that such failure was the proximate cause of the injury herein complained of, while plaintiff was in the exercise of ordinary care, then your verdict must be against the defendant and in favor of the plaintiff, Mrs. Eleonore Dullanty."
The first sentence of the instruction is the first paragraph of section 95 of the Motor Vehicle Act. Statutes 1923, pp. 517, 545. The second sentence is not supported by any statutory provision. See Stats. 1923, p. 517, § § 95, 125(b), and 139. The ordinary meaning of the language used was to the effect that the failure to sound a horn was a failure to comply with the statute. It was not. If the defendant failed to sound a horn, that fact was a circumstance, together with other circumstances, for the consideration of the jury in determining whether the defendant was negligent; but it was not a subject of law to be given as an instruction.
The defendant also complains of the expression "while plaintiff was in" being inserted near the end of the foregoing instruction. He also makes a similar complaint of the same expression as inserted in some other instructions. The plaintiff contends that the point was ruled in plaintiff’s favor in the case entitled Gergen v. Tulare County Power Co., 173 Cal. 709, 720, 161 P. 269. We do not think so. The point was neither discussed nor decided in that case. Nevertheless in the case before us we think the expression complained of was not a prejudicial error. The plaintiff, in the instruction quoted, was complaining because the defendant did not sound a horn. The complaint covered a period of time commencing with the instant that the defendant saw her until the accident occurred. According to some of the testimony, that period of time was to be estimated on the period that it took the defendant to drive over one-half of a block. It is clear that the expression, "while plaintiff was in the exercise of ordinary care," when used in connection with the foregoing facts, did not limit unduly the jury’s consideration of the plaintiff’s conduct.
The judgment is reversed, and the cause is remanded for a new trial.
We concur: KOFORD, P. J.; NOURSE, J.