Opinion
10-21-1952
LEO v. DUNHAM. * Civ. 19026.
A. J. O'Connor, Los Angeles, for appellant. Bauder, Gilbert, Thompson & Kelly, Los Angeles, for respondent.
LEO
v.
DUNHAM. *
Oct. 21, 1952.
Rehearing Denied Nov. 6, 1952.
Hearing Granted Dec. 18, 1952.
A. J. O'Connor, Los Angeles, for appellant.
Bauder, Gilbert, Thompson & Kelly, Los Angeles, for respondent.
SHINN, Presiding Justice.
Plaintiff appeals from a judgment after verdict in favor of defendant in an action for damages for personal injuries sustained when plaintiff was struck by defendant's truck while crossing a highway.
There was no conflict in the evidence as to the material facts. Plaintiff, 73 years of age, a resident of Montana, was riding in a car driven by his wife in a northerly direction on U. S. Highway 99 in the County of Los Angeles. It is a three-lane highway 30 feet wide with a six-foot shoulder along each side. Plaintiff's car was stopped along the east edge of the highway. Plaintiff alighted and directed his wife to drive west across the highway, which she proceeded to do. Defendant was driving a Ford tank truck south at about 30 miles per hour. When he was about 600 feet away he observed plaintiff's car crossing the highway. When he was about 300 feet away he saw plaintiff start across the highway. At the same time plaintiff saw the truck approaching at a distance of about 300 feet. He testified that he thought he had time to cross ahead of it but that it suddenly loomed up in front of him. Defendant testified that he observed plaintiff as he proceeded across the highway and saw that he was looking in the opposite direction. He coasted along without applying brakes until he was within 60 or 80 feet of plaintiff, when he applied brakes, hollered and swerved to the right. The point of the collision was about six feet west of the paved portion of the highway. Defendant denied negligence and pleaded contributory negligence.
The court gave the jury 52 instructions. Among them was one requested by defendant reading as follows: 'A person who, without negligence on his part, is suddenly and unexpectedly confronted with peril, arising from either the actual presence, or the appearance, of imminent danger to himself or to others, is not expected nor required to use the same judgment and prudence that is required of him in the exercise of ordinary care in the calmer and more deliberate moments. His duty is to exercise only the care that an ordinarily prudent person would exercise in the same situation. If at that moment he does what appears to him to be the best thing to do, and if his choice and manner of action are the same as might have been followed by an ordinarily prudent person under the same conditions, he does all the law requires of him, although in the light of after-events it should appear that a different course would have been better and safer.
Plaintiff's sole point on the appeal is that it was error to give this instruction. He contends, (1) the instruction was inapplicable for the reason that upon the uncontradicted evidence defendant was not suddenly or unexpectedly confronted with a condition threatening imminent danger, and (2) defendant was clearly negligent in creating the danger and hence was not entitled to the instruction. Defendant replies, (1) he was confronted with imminent peril, (2) plaintiff was not injured by the instruction inasmuch as it operated as well to his advantage as to defendant's advantage, and (3) it appears from a question asked by the foreman, when the jury returned with a request for further instructions, that the jury found both parties to have been negligent, and for that reason returned a verdict for the defendant.
It was error to give the instruction. When he was 300 feet away, traveling at 30 miles an hour, defendant observed plaintiff in the process of walking across the highway while looking in the opposite direction from that of the approaching truck. Defendant realized that plaintiff was unaware of his danger and yet he proceeded on his course, waiting for plaintiff to look in his direction and stop, until it was too late to stop the truck. If plaintiff had been looking in the direction of the truck it could reasonably have been argued that defendant expected plaintiff to stop before he left the east half of the highway. But when plaintiff was looking in the opposite direction and yet proceeding into the path of the truck, the danger of the situation was continuing as long as plaintiff was looking away. There was nothing sudden about plaintiff's actions. Defendant simply took the chance that plaintiff would look around, see the truck and keep out of its way. The only thing sudden about it was that defendant suddenly discovered his mistake; but it appears from his own testimony that the danger was one which should have been apparent to him while he was traveling 300 feet. Under these facts defendant could not properly claim the benefit of the imminent peril doctrine. It is not available to one who has brought about the emergency by his own negligence. Yates v. Morotti, 120 Cal.App. 710, 716, 8 P.2d 519; Dodds v. Gifford, 127 Cal.App. 629, 632, 16 P.2d 279; 65 C.J.S., Negligence, § 17, p. 412. Defendant does not contend on the appeal that he was free from negligence. Nor was plaintiff in any better position. He saw the truck when it was 300 feet away; he did not testify that he watched it after that, and he did not deny that he was looking in the other direction until the truck was practically upon him. In fact, there was evidence indicating that he walked into the side of the truck, back of the cab. There is no merit in defendant's contention that the instruction was harmless for the reason that plaintiff also suddenly found himself in a perilous position and the instruction therefore was to his advantage. Certainly, when plaintiff was walking into the truck he was in immediate danger, but it was a danger which, but for his negligence, he would have discovered in time to avoid it, and he could not any more than could defendant escape responsibility through reliance upon the imminent peril doctrine. Wright v. Sniffin, 80 Cal.App.2d 358, 364, 365, 181 P.2d 675. We do not believe the jury would have attempted to apply the instruction to plaintiff's conduct. The rule as to the sudden appearance of danger relates to situations which require prompt action and yet afford some opportunity for effort to escape injury. Gamalia v. Badillo, 53 Cal.App.2d 375, 378, 128 P.2d 184; 65 C.JS., Negligence, §§ 122, 123, pp. 732, 735. Plaintiff's discovering the truck when it suddenly 'loomed up' and his colliding with it appear to have been simultaneous. The probabilities are that the jury would have applied the rule to the conduct of defendant and not to that of plaintiff.
Defendant argues that even if the instruction should not have been given there was no harm in it for the reason that the jury determined that both parties were guilty of negligence and that plaintiff's negligence was the proximate cause of the accident. The record shows that when the jury returned into court for further instructions the foreman asked what the verdict should be if both parties were found to have been negligent, in reply to which the court read instructions on negligence and contributory negligence. The court then asked: 'Do those two instructions, as reread to you, answer your question?' to which the foreman replied 'they do as far as I am concerned.' These proceedings, it is true, cause one to suspect that some of the jurors, or perhaps all of them, believed plaintiff to have guilty of contributory negligence. Upon the other hand, a number of the jurors may have been of the opinion that defendant was not negligent, and they may have joined in the verdict for that reason. There was nothing in the proceedings to disprove that the several jurors had different reasons for joining in the verdict. The instruction should not have been given and we have no way of knowing that the jurors were not misled, or that the verdict would have been the same if the instruction had not been given. See Wright v. Sniffin, supra, 80 Cal.App.2d 358, 365, 181 P.2d 675.
Plaintiff testified that he looked once and saw the truck. We cannot say, as a matter of law, that he was negligent in misjudging its speed. That was a question for the jury. Flach v. Fikes, 204 Cal. 329, 332, 267 P. 1079.
The judgment is reversed.
WOOD and VALLEE, JJ., concur. --------------- * Subsequent opinion 264 P.2d 1.