Opinion
Hearing Granted Nov. 6, 1941.
Appeal from Superior Court, Los Angeles County; Lewis Howell Smith, Judge.
Action by Edna Pipoly and Eugene Pipoly, Jr., against Frank Benson and Myrtle Benson for damages for wrongful death of Eugene Pipoly, Sr., in automobile accident. From judgment for defendants after trial before jury, plaintiffs appeal. There was a purported appeal from order of trial court denying plaintiffs’ motion for new trial.
Judgment affirmed. Purported appeal from order denying motion for new trial dismissed.
COUNSEL
Laurence B. Martin, of Los Angeles (Samuel Reisman, of Los Angeles, of counsel), for appellants.
Parker & Stanbury, Harry D. Parker, Raymond G. Stanbury, and White McGee, Jr., all of Los Angeles, for respondents.
OPINION
McCOMB, Justice.
From a judgment in favor of defendants after trial before a jury in an action to recover damages for the wrongful death of Mr. Pipoly, the husband of plaintiff Edna Pipoly and the father of plaintiff Eugene Pipoly, plaintiffs appeal. There is also a purported appeal from the order of the trial court denying plaintiffs’ motion for a new trial.
The evidence being viewed most favorably to defendants (respondents), the essential facts are:
On April 6, 1940, after dark Mr. Pipoly, while crossing Central Avenue near the intersection of 78th street in Los Angeles, was struck by an automobile operated by defendant Frank Benson, at which time said Frank Benson was acting in the course of his employment as an employee of his codefendant Myrtle Benson. From injuries received in the accident Mr. Pipoly died.
Plaintiffs rely for reversal of the judgment on the following propositions:
First: The trial court committed prejudicial error in instructing the jury as follows:
(a) "An ordinance of the City of Los Angeles, in force and effect at the time and place of this accident, provided as follows:
" ‘No pedestrian shall cross a roadway other than by a crosswalk in the central traffic district, or in any business district.’
‘t has been stipulated that the place where the accident occurred was within a business district as defined by the ordinance.
"Therefore, if you find that the deceased Eugene Pipoly violated this provision of the ordinance he was presumptively guilty of negligence as a matter of law, and such negligence, if any, proximately contributing to the happening of this accident, no matter how slightly, would bar the plaintiffs from recovering any damages in this action."
(b) "The jury, and each one of them, each member of the jury understands that they have a right to ask for anything that they wish, but also you understand that you are to take the evidence from the witness stand."
Second: The trial court committed prejudicial error in refusing to comply with the request of the jurors that an instruction regarding the presumption that the deceased used due care for his own safety at the time of the accident be reread after the jury had assumed its deliberations.
Plaintiffs may not urge objection to the instruction set forth in paragraph (a) of their first proposition, for the reason that the ordinance upon which the instruction was predicated, section 80.38 of the Municipal Code of the City of Los Angeles was received in evidence without objection, and the rule is established that, if an invalid ordinance is received in evidence without objection, error may not be urged before an appellate court on the ground that the trial court read to the jury an instruction predicated upon the alleged invalid ordinance. By failing to object to the reception in evidence of such ordinance, the appealing party waives the right to thereafter attack it (Sommer v. Martin, 55 Cal.App. 603, 609, 204 P. 33; Corelis v. Chicago, B. & Q. R. Co., 244 Ill.App. 47, 51; Christianson v. Devine, 210 Ill.App. 253, 254; Deitring v. St. Louis Transit Co., 109 Mo.App. 524, 85 S.W. 140, 148).
Plaintiffs’ objection to the instruction set forth in paragraph (b) of their first proposition is also without merit. After the jury had retired for deliberations, they returned to the courtroom for further instructions, and during the course of colloquy between a juror and the court the following occurred:
"The Court: The jury, and each one of them, each member of the jury understands that they have a right to ask for anything that they wish, but also you understand that you are to take the evidence from the witness stand.
"A Juror: Oh, yes, absolutely.
"The Court: And the law as given by the Court."
It is apparent from the foregoing that the questioned instruction did not direct the jury not to consider as evidence the presumption that the deceased had used due care for his own safety at the time of the accident, as the court had previously instructed the jury. As set forth above, the trial judge instructed the jury to consider not only the evidence from the witness stand but also the law as given to them by the court.
Plaintiffs’ second proposition is also without merit. Among other instructions read to the jury by the trial judge was the following:
"In the absence of any evidence to the contrary, the law presumes that the deceased did everything that a reasonable, prudent man would have done under the same circumstances for the protection of his own safety.
"This presumption is in itself a species of evidence, and it shall prevail and control your deliberations until, and unless it is overcome by satisfactory evidence.
"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."
After the jury had deliberated for six hours, they returned to the courtroom and the following occurred:
"The Court: Well, if you stand six to six and have all of this time do you think there is any opportunity whatever of arriving at a verdict?
"A Juror: I do not see how, your Honor.
"The Court: Well, I think if you haven’t arrived at a verdict and you have stood six to six for such a long period of time that
"The Juror: There was one point we would like to be instructed about and that is the preponderance of evidence and contributory negligence; particularly about contributory negligence.
"The Court: May I have the instructions, Mr. Clerk?
"Another Juror: And also as to the one about supposing or presuming or something.
"The Court: Supposing?
"The Juror: Why I guess that’s what you would consider it, supposing or presuming. Can we suppose that something happened at the time of the accident about which there has been no evidence or must we follow the evidence and the charts?
"The Court: Very well, I will orally answer your questions as to the burden of proof. The burden of proof lies with the person asserting the affirmative of the issue. The burden of proving negligence as charged by the plaintiff on the part of the defendants, lies with the plaintiff; the burden of proving contributory negligence as charged by the defendants, lies with the defendants. Burden of proof means the greater weight of the believable evidence. That, perhaps, should answer that question.
"These are the three instructions additional that I believe you have suggested. In the instruction in reference to the ordinance of the City of Los Angeles, as to the whole ordinance perhaps I can delete that.
"A Juror: Yes.
"The Court: That is concluded with the following:
" ‘Therefore if you find that the plaintiff Eugene Pipoly violated this provision of the ordinance, he was presumptively guilty of negligence as a matter of law, and such negligence, if any, proximately contributing to the happening of this accident, no matter how slightly, would bar the plaintiffs from recovering any damages in this action.’ Also the further instruction:
" ‘If you find that the deceased, Eugene Pipoly, violated the provisions of this ordinance, then he was presumptively guilty of negligence as a matter of law, and if you further find that such negligence, if any, contributed proximately to the accident in question, no matter how slightly, your verdict should be in favor of the defendants, and each of them.
" ‘If you find that both the defendant, Mr. Benson, and the deceased, Eugene Pipoly, were negligent, and that the negligence of both proximately contributed to the accident, then you cannot attempt to determine which one was guilty of the greater negligence, for under such circumstances you cannot allow any damages whatever to Mrs. Pipoly and Gene Pipoly.
" ‘You are not permitted to indulge in speculation, conjecture or guess work for the purpose of determining any issue in this case, and therefore if, after considering all of the evidence, you find that the accident might have resulted from several different causes without negligence on the part of the defendant, Mr. Benson, and you further cannot determine what was the proximate cause of the accident, then your verdict must be in favor of the defendants, and each of them’.
"The Court: Those are the only instructions that I have in mind bearing upon the matters that you requested.
"Mr. Brown: Well, your Honor, I would like to call your attention to the instruction that states the rule of law with reference to the matter of presumption of due care on the part of the decedent.
"The Court: I have just given instructions on the matters that have been requested by the jury. Otherwise I would have instructed the jury on that matter.
"Mr. Brown: I would like to ask the Court to inquire of the juror or the jury if they wish to have the instruction given with reference to the presumption of due care on the part of the decedent.
"The Court: I cannot suggest to the jury what they may want to know.
"Mr. Brown: Well, that was in the instructions and that was what was asked for by this juror with reference to the supposition, and they said supposing or presuming, and as I understand it that is what they were trying to say; I’m only asking the Court to inquire of the jury if they wish to have the instruction on the matter of presumption. In this case the presumption as stated by the Court previously in the instructions with reference to the presumption of due care on the part of the decedent is an important factor in this case.
"The Court: I am sorry, Mr. Brown, but I am not going to indulge in an argument here, and I am not going to make suggestions to the jury, none whatever. I will be glad to give heed to any particular questions the jurors may have.
"A Juror: Your Honor, may we ask now that we be instructed on that one point?
"The Court: On what one point?
"The Juror: In regard to the supposing or presuming and as regarding the preponderance or not the preponderance of the evidence, one way or the other.
"The Court: Certainly; I will be glad to read that to you again:
" ‘Preponderance of the evidence means the greater weight of the evidence. Negligence as charged by the plaintiffs against the defendants, the burden of proof is upon the plaintiffs to prove that negligence by a preponderance of the evidence which must be done by believable testimony.’
"The Court: Is that what you want?
"The Juror: No; no, sir, that wasn’t it.
"The Court: Well, I don’t know how I could make it any clearer.
"A Juror: Well, it was just as Mr. Brown stated and I can’t follow his words exactly, or I can’t use the exact words he did, but I believe the other lady said she wanted to have that read, too.
"The Court: Yes, she has asked, but I thought I had clearly given her an answer to her question.
"The Juror: That has been the point of contention, your Honor.
"The Court: What has been the point of contention?
"The Juror: The matter that was just mentioned by Mr. Brown, referring to the plaintiff.
"The Court: Was that matter covered in the instructions I just gave you?
"A Juror: No, not exactly; as I understand, a witness can suppose or he can assume something else other than the evidence offered implies.
"The Court: The jury, and each one of them, each member of the jury understands that they have a right to ask for anything that they wish, but also you understand that you are to take the evidence from the witness stand.
"A Juror: Oh, yes, absolutely.
"The Court: And the law as given by the Court.
"A Juror: Well, I can’t say it just as he did, but that was the point anyway.
"The Court: Is there anything further the Court can give you?
"A Juror: Supposing we return to our jury room for a while.
"The Court: Very well, you may retire."
Plaintiffs urge that the trial judge refused to reread to the jury instructions which they desired. From the foregoing transcript of what occurred when the jury returned to the courtroom for further instructions, it would appear, since we may not presume error, that the juror who requested the rereading of an instruction relative to the presumption that the deceased had used due care for his own safety at the time of the accident was fully satisfied, for the trial judge said, "Is there anything further the Court can give you?" to which a juror, who we must presume in the absence of a showing in the record to the contrary, was the same one who sought to have the instruction reread, replied, "Supposing we return to our jury room for a while." It thus seems that the jury did not desire further instructions from the trial judge.
For the foregoing reasons the judgment is affirmed.
Since an order denying a motion for a new trial in a civil case is a nonappealable order, the purported appeal from such order is dismissed.
I concur: MOORE, P. J.
I dissent: WOOD, J.