Opinion
Rehearing Granted May 25, 1961.
For Opinion on Rehearing see 14 Cal.Rptr. 117.
Hoge, Fenton, Jones & Appel, Charles H. Page, Monterey, for appellants.
C. Ray Robinson, Merced, William B. Boone, San Bruno, of counsel, for respondents.
DRAPER, Acting Presiding Justice.
Judgment upon jury verdict was in favor of plaintiff son for general damages and of plaintiff father for medical and hospital expenses of the son. Defendants are Eric Hitchcock, who drove the car which struck Both boys had attended an evening meeting of a junior ski club. After the meeting, a number of boys and girls went to a county road, intending to dance to their car radios. Plaintiff went with this group. Their 10-12 automobiles were parked off the roadway. The youngsters had been at this location for a few minutes, but had not yet begun to dance, when the accident occurred. Defendant, on leaving the meeting, had driven a friend home, and then drove toward his own home. His speed was 35 to 50 miles per hour as he entered the road along which the other youngsters were. The evidence is in conflict as to whether any of the teen-agers, particularly plaintiff, was on the paved roadway. Defendant testified that he first saw plaintiff when defendant's car was not less than 20 to 30 feet away. However, defendant also placed the point at which he was when he first saw plaintiff by reference to a building and other objects along the road. Evidence of the location of these objects and the point of impact affords basis for the conclusion that defendant's car was 196 feet or more from plaintiff when the driver first saw plaintiff, who was wearing a bright red jacket. Defendant did not apply his brakes, slow down, or sound his horn before the impact. There is some evidence that defendant's car swerved off the pavement immediately before striking plaintiff. As a result of his injuries, plaintiff has no memory of the accident.
The jury was instructed that contributory negligence is not a defense to a charge of wilful or wanton misconduct, and was told in detail of the elements of such misconduct. Defendants attack these instructions. We have concluded that they are erroneous.
Plaintiffs rely upon two cases which state that contributory negligence is not a defense where wilful or wanton misconduct of the defendant is shown (Esrey v. Southern Pacific Co., 103 Cal. 541, 545, 37 P. 500; Girdner v. Union Oil Co., 216 Cal. 197, 202, 13 P.2d 915). But neither decision actually turns upon the rule announced. Rather, each was based upon the last clear chance doctrine, and Girdner specifically states that a defendant's failure to exercise such chance approaches the wilful and wanton, thus explaining the last clear chance doctrine. It is to be noted, also, that neither of these cases discusses the statute (Civ.Code § 1714) which establishes liability for wilful or negligent acts and which, literally read, would negate the doctrine of Esrey and Girdner (see discussion in 2 California Jury Instructions, Civil, 4th ed., p. 669). Defendants omit to discuss one decision (Bickford v. Pacific Elect. Ry.Co., 120 Cal.App. 542, 550, 551, 8 P.2d 186) which appears to distinguish Esrey. Even if the rule is as urged by plaintiffs, it is doubtful that the evidence here warranted instructions on wilful or wanton misconduct. To permit introduction of that element here would be to open the vast majority of personal injury actions to injection of the same extraneous claim.
Aside from that issue, however, we are satisfied that the instructions defining wilful or wanton misconduct were erroneous. We find no error in the instruction that express knowledge by defendant of the probable consequences of his conduct need not be shown, but that such knowledge may be inferred or implied (Cope v. Davison, 30 Cal.2d 193, 199, 180 P.2d 873, 171 A.L.R. 667; Van Fleet v. Heyler, 51 Cal.App.2d 719, 125 P.2d 586). But the instruction then reads 'The driver is charged with knowledge of the probable consequences if such consequences would have been apparent to a person of ordinary prudence and intelligence.' This introduction of the standard of the reasonable man hopelessly confuses the definition of ordinary negligence with that of wanton or wilful misconduct. It fails to advise the jury that such misconduct exists only when there is 'actual knowledge, or that which in the law is esteemed to be the equivalent Cope v. Davison,
Porter v. Hofman, Parsons v. Fuller,It can well be argued that the rigid application of an internal or subjective standard for determination of wilfulness or wantonness of defendant's intent would place an unduly heavy burden upon the plaintiff (see discussion in Van Fleet v. Heyler, supra, 51 Cal.App.2d 719, 727-730, 125 P.2d 586). But this instruction deals with much more than the frame of mind of defendant. It could readily be construed by the jury to charge defendant with all the facts of which the reasonable and prudent man in like position would have been aware, and then to apply the standard of ordinary care to a determination of the frame of mind motivating defendant's actions in such circumstances.
It is apparent that such an instruction wholly destroys the distinction between ordinary negligence and wilful or wanton misconduct. Such misconduct in truth is 'something different from and more than negligence, however gross' (Porter v. Hofman, supra, 12 Cal.2d 445, 448, 85 P.2d 447, 448, and see full review in Mercer-Fraser Co. v. Industrial Acc. Comm., 40 Cal.2d 102, 251 P.2d 955). Although the jury was told that such misconduct is 'something more than negligence,' this limitation was promptly dissipated by the reference to the standard of 'a person of ordinary prudence.'
The fact that the jury was fully instructed on the doctrine of last clear chance adds still further confusion. The last clear chance instruction properly advised that the doctrine applies when plaintiff was in a position of danger from which he could not escape; when defendant knew plaintiff was in a position of danger and knew or should have known that he could not escape; when defendant had a last clear chance to avoid the accident by the exercise of ordinary care, but did not exercise that chance (Brandelius v. City & County of S. F., 47 Cal.2d 729, 743, 306 P.2d 432). There is clearly an overlap of this instruction upon the very broad instruction on misconduct. This overlap, which has been noted by the courts (Girdner v. Union Oil Co., supra, 216 Cal. 197, 202, 13 P.2d 915) could well confuse a jury.
We feel compelled to conclude that the error is prejudicial. On this record, the jury could well have found for plaintiff on last clear chance, or could even have concluded that there was no contributory negligence. But the record shows nothing to indicate that it did either. The jury began its deliberation at 4:23 p. m. It returned at 8:20 to ask reading of defendants' testimony, and re-reading of instructions 'starting from the doctrine of last clear chance'. Instructions on that doctrine immediately preceded those on wilful or wanton misconduct, and the latter, as well as the former, were re-read by the court. At 11:25 p. m. the jury returned its verdict, which had been reached by a vote of ten to two. In this situation, we cannot say that the erroneous instruction was not a major factor in the result. Thus the judgment must be reversed.
For the court's guidance on retrial, we point out that we find little merit in the remaining contentions of defendants.
The jury was properly instructed that plaintiff was entitled to the presumption of due care. The accident caused him a loss of memory and he was unable to testify to its occurrence. The testimony of witnesses produced by him is not such as to bar his reliance upon the presumption (see Gigliotti v. Nunes, 45 Cal.2d 85, 93, 286 P.2d 809).
As is apparent from our statement of the facts, the evidence was sufficient to warrant the instruction on last clear chance (See Bonebrake v. McCormick, 35 Cal.2d 16, 215 P.2d 728).
The instruction on the care required of a driver and a pedestrian probably is not erroneous. However, it perhaps Lasater v. Oakland Scavenger Co.,
Reich v. Long,Judgment reversed.
SHOEMAKER, J., concurs.