Opinion
Page __
__ Cal.App.2d __ 234 P.2d 270 DUNN et al. v. RUSSELL et al. Civ. 18085. California Court of Appeals, Second District, Second Division July 31, 1951.Hearing Granted Sept. 27, 1951.
Dismissed June 10, 1952.
Rehearing Denied Aug. 15, 1951.
Stutsman, Hackett & Nagel, Fresno, Abe Levin, Hollywood, Chase, Rotchford, Downen & Drukker, Donn B. Downen, Jr., and Otto M. Kaus, all of Los Angeles, for appellants.
Knight, Gitelson, Ashton & Hagenbaugh, Los Angeles and Leon Savitch, Los Angeles, of counsel, for respondent Russell.
[234 P.2d 272] Ray L. Chesebro, City Atty., Gilmore Tillman, Chief Asst. City Atty. for Water and Power, Gerald Luhman, Deputy City Atty. and Wendell Mackay, Deputy City Atty., all of Los Angeles, for respondent Department of Water and Power of City of Los Angeles.
MOORE, Presiding Justice.
Fidelia Dunn Caldwell and Martha Sciaroni sued to recover on account of injuries received when Mrs. Caldwell's automobile, operated by Mrs. Sciaroni, collided with the rear end of a truck parked near the west side of Lankershim boulevard in the city of Los Angeles. The truck was the property of respondent, Department of Water and Power of Los Angeles, and at the time of the accident was in the custody of its employee, respondent Russell. During the pendency of the suit, Mrs. Sciaroni deceased from causes unrelated to the accident, and at the time of trial the administratrix of her estate, Antoinette Lloyd Sciaroni, was substituted as a party plaintiff.
Respondents denied all material allegations of their negligence and alleged contributory negligence on the part of appellants. The latter appeal from the judgment entered upon a verdict denying them relief.
Appellants concede that if there was any negligence on the part of Mrs. Sciaroni, it should be imputed to Mrs. Caldwell. Reversal is demanded on the ground that the court erred in the giving and refusing of a number of instructions.
Lankershim boulevard, a north-south highway, at the point of the collision is approximately seventy feet wide. A double white line is painted down its center. Twelve feet to the west thereof is a single white line. The highway is paved with a heavy duty asphalt from its center westerly 23 feet. The next 12 feet westerly is composed of a rock and oil pavement, two inches thick. Eight feet thereof continues the gentle downward slope, but then rises about eight inches in the next four feet. Thus a gutter effect is created along the edge of the pavement. The center 46 feet of the boulevard is the mainly traveled portion.
At the time of the accident, Russell was parked on the west margin of Lankershim boulevard. He testified that his right wheels were within one foot of the extreme edge of the highway, and his left wheels approximately a foot or two east of the flow line of the gutter. There was a sharp conflict on this point, appellant Caldwell having testified that the truck's left wheels were from four to six feet east of the gutter line. Russell had just re-entered the cab of his truck after checking supplies in its rear compartment when it was struck by the Caldwell vehicle. She testified that her car was proceeding southerly in the center lane on the west side of the roadway with Mrs. Sciaroni at the wheel. Before reaching respondents' truck, a black sedan passed them on the left crowded them over, cut into their lane and sped on without touching the Caldwell car. Mrs. Sciaroni applied the brakes, swerved to her right, collided with the rear of the truck.
Appellants' first ground for reversal is that the court erred in refusing to instruct the jury specifically that Mrs. Sciaroni was entitled to the presumption that she had exercised due care. The fallacy of such contention is manifest to him who reads the instruction given, to wit: 'At the outset of this trial, each party was entitled to the presumptions of law that every person takes ordinary care of his own concerns and that he obeys the law. These presumptions are a form of prima facie evidence and will support findings in accordance therewith, in the absence of evidence to the contrary. When there is other evidence that conflicts with such a presumption, it is the jury's duty to weigh that evidence against the presumption (and any evidence that may support the presumption), to determine which, if either, preponderates. Such deliberations, of course, shall be related to, and in accordance with, my instructions on the burden of proof.'
Appellants argue that Mrs. Sciaroni was not a 'party' to the suit and therefore was not benefited by this instruction. [234 P.2d 273] Such contention would lead to error. Although Mrs. Sciaroni was not technically a party to the action after her decease, nevertheless her administratrix has no personal interest in the action and appears merely in a representative capacity. Code Civ.Proc. sec. 385; Campbell v. West, 93 Cal. 653, 657, 29 P. 219, 645. Although it would have been more correct to designate Mrs. Sciaroni by name, it would be an overly strict and unreasonable interpretation of the instruction to hold that it did not extend the benefit of the presumption of due care to her. The jury could not reasonably have considered otherwise than that decedent was a 'party' within the meaning of the court's instruction. The pleadings and the evidence show that she was a party involved in the accident. The jury was instructed that she was driving the Caldwell car, that she had subsequently deceased and that her personal representative was entitled only to such special damages as were incurred for hospitalization and treatment of her injuries.
However, the giving of the instruction was erroneous inasmuch as it also gave respondent Russell the benefit of this presumption of due care. Where a party has testified as to his conduct in, and of the events leading up to, an accident in which he was an actor, he is not entitled to the presumption in his favor but the jury must rely strictly upon such testimony as proof of his freedom from negligence. Speck v. Sarver, 20 Cal.2d 585, 587-588, 128 P.2d 16. The determinative question is whether appellants were prejudiced by the reading of the instruction. Numerous decisions have stigmatized the instruction as erroneous but their authors declined to denounce it as prejudicial or to reverse the judgment. See Speck v. Sarver, supra, 20 Cal.2d at page 588, 128 P.2d at page 16; Tuttle v. Crawford, 8 Cal.2d 126, 133, 63 P.2d 1128; Rogers v. Interstate Transit Company, 212 Cal. 36, 39, 297 P. 884. On the other hand Ford v. Chesley Transportation Company, 101 Cal.App.2d 548, 225 P.2d 997; Cole v. Ridings, 95 Cal.App.2d 136, 212 P.2d 597; Kelly v. Fretz, 19 Cal.App.2d 356, 65 P.2d 914; Campbell v. City of Los Angeles, 28 Cal.App.2d 490, 82 P.2d 720, and Clary v. Lindley, 30 Cal.App.2d 571, 86 P.2d 920, held it to be reversible error.
Necessarily, the question of prejudice turns upon the facts of each case. On this rehearing, because of the warning sounded in Ford v. Chesley Transportation Company, supra, we have re-examined the decisions and with care have subjected the facts of the instant case to more refined scrutiny. The Ford case involved a truck and trailer the highway in the nighttime with the plaintiff a passenger in the automobile which struck the truck. Just as in the case at bar, the trial court there erroneously gave the jury this same stock instruction failing to restrict its application to the plaintiff alone. This court (Division III) reversed the judgment denying plaintiff relief relying solely on that error. It was pointed out that there was little evidence of contributory negligence on the plaintiff's part but that she was forced to overcome the considerations pointing to defendants' freedom from negligence plus also the presumption that defendant was not negligent.
Such observations are pertinent here. With reference to the primary issue of whether Russell parked close to the curb or whether his truck stood in such a position as to jut far out into the roadway, there was a sharp conflict of testimony. On the other hand, the evidence of negligence on the part of Mrs. Sciaroni is so slight as to constitute no proof at all. Accordingly, the error in giving the presumption to respondents might clearly have tipped the scales in Russell's favor. From these considerations it appears that the error in the instruction was prejudicial, necessitating a reversal.
The word 'curb' as used herein and in the testimony, questions and instructions refers to the western margin of the boulevard. There does not appear to have been a concrete curb in the form in which it ordinarily obtains.
As an aid to the trial court on a subsequent trial, other controverted instructions are discussed in the following pages.
[234 P.2d 274] The court refused to give the following instruction:
'You are instructed that if you find that the defendants in this action stopped or otherwise parked their vehicle at a point in the highway other than a business or residence district, and that such roadway was not bounded by adjacent curbs, then a prima facie case of negligence has been established against the defendants. There is no duty upon the part of the plaintiff to prove that it was practicable for the defendants to park some other place than on the paved or improved or main traveled portion of the highway, but on the contrary, once the fact of having so parked has been established, it is encumbent upon defendants to prove that it was not practicable to park or stop at any other place.'
Appellants assert that by virtue of the court's failure to give this instruction, it in effect instructed the jury that the burden of proving the practicability of Russell's parking elsewhere was on the appellants, when the authorities are to the contrary. Thomson v. Bayless, 24 Cal.2d 543, 546, 150 P.2d 413. However, the jury was fully and correctly instructed [234 P.2d 275] on the substance of section 582 of the Vehicle Code which was the basis of appellants' requested instruction. Moreover, appellants assumed the burden of proving and did prove that it was practicable for Russell to park elsewhere. No evidence to the contrary was introduced and in fact Russell himself virtually admitted he stopped at that location only for his own convenience. Hence, the needlessness of reading such instruction is clearly evident. Its rejection was a correct ruling.
'You are instructed that at the time of the accident Section 582 of the Vehicle Code of the State of California provided as follows: 'Upon any highway outside of a business or residence district no person shall stop, park or leave standing any vehicle, whether attended or unattended, upon the paved or improved or main traveled portion of the highway when it is practicable to stop, park or so leave such vehicle off such part or portion of said highway. This section shall not apply upon a highway where the roadway is bounded by adjacent curbs.''
There was no error in the giving of the instruction that, pursuant to the Vehicle Code, section 526, a vehicle shall be driven within a single lane whenever a roadway has been divided into three or more clearly marked lanes of traffic. Contrary to appellants' argument that no evidence supports the giving of such an instruction, the record reveals testimony of appellant Caldwell that the highway consisted of six traffic lanes, three each way. The evidence established that such lanes were 'clearly marked' either by painted lines or differences in the texture and composition of the highway surface. In any case, no prejudice is shown.
Neither is there error in the giving of an instruction 'that the terms 'paved' or 'improved portion of the highway' as used in section 582 of the Vehicle Code, at the time of the accident, mean that portion of the highway ordinarily used for vehicular travel.' In Ketchum v. Pattee, 37 Cal.App.2d 122, 127, 98 P.2d 1051, 1054, it was held that 'improved portion' of the highway, 'mentioned in sections 582 and 584 of the Vehicle Code refers to a portion improved and ordinarily used for vehicular travel.' The opinion on this point was in no sense dictum, as contended by appellants.
Appellants urge as error the court's instruction in regard to what constituted a curb. The instruction given was as follows: 'You are instructed that the common meaning of the word 'curb' as applied to a state highway is a stone or row of stones or similar construction of concrete, wood or other material along the margin of the highway set aside for vehicular use, and a restraint and protection to the adjoining sidewalk space.' Appellants requested an instruction to the effect that in determining whether or not a curb existed, the jury could not consider 'any macadam or other paving, whether or not raised above the drainage or ditch * * * as curbing.' Thereby, they sought to have the jury advised that as a matter of law the roadway at the point of the accident was not bounded by a curb. It is their contention that the sloping four feet, rising eight inches in that distance, cannot be a curb within the meaning of the Vehicle Code. However, that question was one of fact for the determination of the jury. Admittedly, the word 'curb' usually connotes some sort of vertical barrier along the edge of the roadway, but there was expert testimony from the witness Harding, a civil engineer in charge of designing streets, that this slope was one of a number of types of curbing used in Los Angeles. He related that the city utilizes not only vertical cement curbs, but also those with varying amounts of slope, one of the most common being a concrete curb with a slope of 21 inches and a six inch rise. The purpose of such a slope is to provide a drainage gutter, to prevent erosion of the pavement and to define the limits of the roadway. These purposes are consistent with the functions of any type curbing. The witness further pointed out that the eight-inch rise in the [234 P.2d 276] slope on Lankershim boulevard was the 'established elevation for a curb' and the 'equivalent of the normal hike-up for a curb.'
Appellants' requested instruction was also erroneous since it informed the jury that a curb could not be constructed of macadam or other paving. Curbing has been judicially defined to include wood, stone, cement or any other material. Lyman v. Town of Cicero, 222 Ill. 379, 78 N.E. 830. The court's instruction as given was correct.
Judgment reversed.
McCOMB and WILSON, JJ., concur.
'You are instructed that it has been established as a matter of law that the roadway at the place of the occurrence of the accident, which is the subject of this litigation, was a highway outside of a business or residence district within the meaning of Section 582 of the Vehicle Code.'
'You are instructed that the terms 'paved' or 'improved portion of the highway' as used in Section 582 of the Vehicle Code, at the time of the accident mean that portion of the highway ordinarily used for vehicular travel.'
'You are instructed that in ascertaining whether or not it was practicable to park a non-disabled truck, as is involved in the present litigation, off the highway, you must consider not only the physical conditions immediately to the right of the place at which the truck was parked, but also any other possible parking space to which the vehicle might reasonably be taken within a reasonable distance.'
'You are instructed that the common meaning of the word 'curb' as applied to a state highway is a stone or row of stones or similar construction of concrete, wood or other material along the margin of the highway set aside for vehicular use and a restraint and protection to the adjoining sidewalk space.'
'You are instructed that Section 588 of the Vehicle Code of the State of California in full force and effect at the time of the occurrence of this accident insofar as it is pertinent to this action reads as follows: 'Except as otherwise provided in this section every vehicle stopped or parked upon a roadway where there are adjacent curbs shall be so stopped or parked with the right-hand wheels of such vehicle parallel with and within eighteen inches of the right-hand curb.' The above vehicle section just quoted is only applicable if you first find that the State highway at the point where the accident occurred has actually bounded by curbs within the definition of the same as given to you by the court.'
'Conduct which is in violation of Section 526 or 582 or 588 of the Vehicle Code of the State of California just read to you constitutes negligence per se, that is, negligence as a matter of law. This means that if the evidence supports a finding, and you do find, that a person did so conduct himself, it requires a presumption that he (or she) was negligent. However, such presumption is not conclusive. It may be overcome by other evidence showing that under all the circumstances surrounding the event, the conduct in question was excusable, justifiable and such as might reasonably have been expected from a person of ordinary prudence. In this connection, you may assume that a person of ordinary prudence will reasonably endeavor to obey the law and will do so unless causes, not of his own intended making, induce him, without moral fault, to do otherwise.'
'You have been instructed that conduct which was in violation of certain sections of the Motor Vehicle Code just read to you constitutes negligence per se, that this means that if the evidence supports a finding and you do find that a person did so conduct himself, it requires a presumption that he was negligent. In this connection you are further instructed that such presumption is not conclusive; that it may be overcome by other evidence tending to show that under all the circumstances surrounding the event, the conduct in question is excusable, justifiable and such as might reasonably have been expected from a person of ordinary prudence. You should, however, be cautioned that in applying this instruction to an alleged violation of Section 582 of the Vehicle Code, namely that section covering stopping, standing or parking outside of business or residence districts, a deliberate, unlawful parking in violation of said section for reasons of personal convenience only, is not excusable or justifiable.'