Opinion
Rehearing Denied June 23, 1930
Hearing Granted by Supreme Court July 31, 1930
Appeal from Superior Court, Kern County; Robert B. Lambert, Judge.
Action by James E. Skaggs against Walter Willhour. Judgment for plaintiff, and defendant appeals.
Reversed with directions. COUNSEL
Culver & Nourse, by Paul Nourse, all of Los Angeles, for appellant.
Victor A. Dunn, of Oakland, and Siemon & Garber, of Bakersfield, for respondent.
OPINION
BARNARD, Acting P.J.
This is an action to recover damages for injuries received in an automobile collision. About 2 a.m. on November 30, 1926, the plaintiff was driving his automobile along the state highway about three miles north of Lebec. He was traveling north, and a truck and trailer owned by defendant, and operated by his agent, was traveling in the same direction. The highway at all points involved herein is a paved highway eighteen feet in width. It appears that another truck headed south, and with its headlights burning, had stopped with its right wheels about two feet off the paved portion of the highway. Taking the view of the evidence most favorable to the plaintiff, defendant’s truck, which was proceeding north, had stopped on the highway just opposite the south-bound truck. The highway was straight for about six hundred feet south of the point of the accident, the grade of the road being about 5 per cent. down toward the scene of the accident. The plaintiff testified that as he rounded a slight curve some six hundred feet from the point of the accident he saw the lights of the parked truck, although at that time he was not sure whether it was standing still or moving very slowly; that he was traveling at a speed of twenty to twenty-five miles per hour, but as he came into the direct rays of the lights from the truck, he slowed down to not more than fifteen miles per hour; that from the time he was one hundred and fifty feet from the front of the south-bound truck he was blinded by its lights and could see nothing; that when he was within approximately fifteen feet of the rear of defendant’s truck he saw it for the first time and applied his brakes and attempted to swerve to the left, but was unable to stop and collided with some pipes which were loaded on defendant’s trailer. His automobile was completely wrecked, and he was injured. At the trial of the case, after a motion for nonsuit had been denied and after a request for an instructed verdict had been refused, the jury brought in a verdict for $10,000, which was later reduced by the court to $8,000, and from the judgment which followed the defendant has appealed.
Appellant insists there is no evidence to show negligence on the part of his agent. While there is some evidence that at the time of the collision his truck was moving at about five miles per hour, there is other evidence which, if believed by the jury, was sufficient to fasten negligence on the defendant.
The principal question here presented is whether under that view of the evidence most favorable to the respondent, he was guilty of contributory negligence as a matter of law. The respondent argues that the facts in the instant case are almost identical with those in Schurman v. Los Angeles Creamery Co., 81 Cal.App. 758, 254 P. 681, and that under the rule there laid down the question of contributory negligence was one of fact for the jury. In that case the court held that the driver of an automobile proceeding at twelve to fifteen miles per hour with proper headlights could not be held guilty of contributory negligence as a matter of law because he, in fact, did not see a team and wagon which was admittedly not directly in the course of his lights but was just over the center of the highway and moving toward the oncoming machine. The facts in that case are very different from those in the case before us, which is one involving the duty of the driver of an automobile who is blinded by something in front of him. A further statement of the facts in reference to this part of the case is necessary. On direct examination the respondent testified as follows:
"Q. How close were you to the truck when you first saw the headlights? A. When I first observed the headlights that I thought were standing still or moving very slow, I could not tell which, I was possibly 150 yards away.
"Q. How many yards? A. About 150 yards, but there was no truck passed or no car between that distance and up to the time I came up to this truck. ***
"Q. How fast were you coming down there? A. Well, I was coming probably, before I came in the rays of this headlight, twenty or twenty-five miles an hour.
"Q. Now what did you do, if anything, when you approached the trucks standing in the road? A. As I approached the trucks, the headlights of this truck facing me were very bright— I could not see the highway for the rays of light, so I was slowing down until I got by the truck. When I got about fifteen feet I should judge— I was right on it anyway— I observed that there was a truck standing there and I applied my brakes and made a left swing and tried to miss it and I hit the left hind rear corner of the truck going north.
"Q. What did you do, if anything, to try to stop? A. I applied all I had to stop it.
"Q. Did your car— did you skid or run on into the truck? A. Yes, I skidded.
"Q. What truck did you strike, the one going south or the one going north? A. The one going north. ***
"Mr. Dunn: Q. What was the reason you could not see it? A. Just as I said before, it was impossible for me to see anyone within the rays of this headlight.
"Q. Were the headlights very bright? A. Very bright, yes, sir.
"Q. Was the truck on an incline? A. The truck I was facing was coming up the hill and the one going north was going down the hill. ***
"A. Naturally a headlight coming facing you, if they reach up an incline they throw the light in your face. In this case it was a gradual slope and after I came within rays of the light facing me I was continually in the rays of the light until I passed the rays, and I hit the rear end of the trailer. ***
"Q. When did you first see the truck, the tail end of the truck going north? A. When I was within about fifteen feet of the rear end of it.
"Q. And prior to that time could you see any tail-lights or any lights of that kind? A. You could not see anything past the rays of these lights.
"Q. Couldn’t you even see the road there? A. I could not see the highway there; that is the reason I was slowing down; when I first seen the lights I was not traveling over fifteen miles an hour."
On cross-examination respondent testified that his brakes and car generally were in perfect condition; that while traveling at twenty-five miles an hour he could stop in twenty-five feet, and while traveling at fifteen miles an hour he could stop easily in twenty feet; and that the road was straight for about two hundred yards before the point of the accident. He then testified:
"Q. That was 150 feet from the accident? A. Yes.
"Q. And it was at that time you were blinded and could not see anything? A. Yes.
"Q. Until you were within fifteen feet of the truck you hit? A. That would be my best judgment."
He further testified that the trailer was loaded with pipe which extended beyond the body of the trailer three or four feet; that there was a small regular tail-light the size of a touring car tail-light mounted on the frame of the trailer underneath the pipe, but that he did not see this light until after the collision.
Irrespective of any negligence of the appellant, some duty rested upon the respondent under the circumstances depicted here. Under section 113 of the California Vehicle Act (St.1923, p. 517) in force at that time, it was the duty of the respondent to drive his car at a careful, prudent speed not greater than was reasonable and proper under the circumstances then existing. Under section 121 of the same act it was his duty to drive with due caution and circumspection under the existing circumstances. In Donat v. Dillon, 192 Cal. 426, 221 P. 193, 194, the court said:
"A motorist must at all times use due care to avoid colliding with another; he must be ever alert and watchful, so as not to place himself in danger, and, while he may assume that others will exercise due care, he cannot for that reason omit any of the care which the law demands of him."
In Meyers v. Bradford, 54 Cal.App. 157, 201 P. 471, the court said:
"It is part of the duty of the operator of a motor vehicle to keep his machine always under control so as to avoid collisions with pedestrians and other persons using the highway. He has no right to assume that the road is clear, but under all circumstances and at all times he must be vigilant and must anticipate and expect the presence of others."
In Havens v. Loebel (Cal.App.) 284 P. 676, 678, the court held that it was contributory negligence as a matter of law for the driver of an automobile to pass an intersection at more than fifteen miles an hour when his vision was so blinded by the sun that his view was not clear and unobstructed. In that case the court quotes the following language from the case of Hammond v. Morrison, 90 N.J.Law, 15, 100 A. 154, decided by the Supreme Court of New Jersey:
"The defendant did not deny that the decedent came to his death in the way above stated, but attempted to excuse himself upon the ground that just before the collision the street lights which he had passed were reflected into his eyes by the windshield of his car, so that he was unable to see in front of him, and that this temporary blindness was the cause of the collision. His own story demonstrates his lack of care. No man is entitled to operate an automobile through a public street blindfolded. When his vision is temporarly destroyed in the way which the defendant indicated, it is his duty to stop his car, and so adjust his windshield as to prevent its interfering with his ability to see in front of him. The defendant, instead of doing this, took the chance of finding the way clear, and ran blindly into the trolley car behind which the decedent was standing. Having seen fit to do this, he cannot escape responsibility if his reckless conduct results in injury to a fellow being."
The court also refers to the case of Budnick v. Peterson, 215 Mich. 678, 184 N.W. 493, wherein the Supreme Court of Michigan lays down the rule if the vision of an automobile driver is obscured by the glaring lights of an approaching car, it is his duty to slacken his speed and have his car under such control that he can stop it if necessary.
The case of Hatzakorzian v. Rucker-Fuller Desk Co., 197 Cal. 82, 239 P. 709, 714, 41 A.L.R. 1027, was one where the facts were in many respects similar to the instant case, so far as the matter now under consideration is concerned. The court there said:
"Under the circumstances of the present case— the narrowness of the unpaved portion of the highway, the darkness of the night and the blinding of Kennell by the glare of the lights reflected from the headlights of the approaching machine— the highway over which Kennell was traveling was beset by danger of an extraordinary character from the time his vision became so obscured as to make it impossible for him to see plainly the road before him to the time that he struck the deceased. Thus the ordinary care with which Kennell was charged in driving his car over the highway required such an amount of such care as was commensurate with the exactions of the extraordinary dangerous circumstances under which he was then operating his car."
And also the following:
"Testing the conduct of the defendant Kennell, in operating his car on the occasion in question, by the rules and principles above set out, it is clear from his own testimony that he disregarded and violated every duty which the law imposes upon drivers of automobiles when driving the same over the public highways. *** (1) He was traveling, up to the time the glare reflected from the lights of the approaching automobile *** at the rate of 25 miles an hour; (2) when the glare struck his eyes he was a distance of between 150 and 200 feet from where he collided with deceased; (3) the glare so obstructed his vision that he was unable to see an object on the highway before him, although his lights were in good condition and under ordinary circumstances he was able by them to discern an object before him at a distance of from 75 to 100 yards; (4) he did not see the deceased until after his car struck him; (5) when the glare first struck his eyes and blinded him, with the result as indicated, he diminished the speed of his car so that thereafter and until he struck deceased, he was still traveling at a speed of between 20 and 25 miles an hour; (6) he did not put on his brakes, nor turn off the gas or ignition; (7) his brakes were in perfect order and he said he could have stopped his car between the time the glare first struck his eyes and the time he struck deceased, but that he did not do so, nor make any attempt to do so; (8) that he was not anticipating the presence of pedestrians on the highway in front of him— in fact, his mind, he himself in effect stated, was not on the matter of whether he might or might not overtake a pedestrian. It is only necessary to compare the foregoing résuméof Kennell’s own testimony with the requirements of the law with respect to the duties of operators of automobiles when driving over the highways of the state to force the conclusion that, from the time the glare from the lights of the approaching car first reflected through his windshield into his eyes, he proceeded on until he struck and killed the deceased with a degree of indifference or recklessness as to the rights and safety of others who might be ahead of him on the highway closely approaching, if indeed, not amounting, under the circumstances, as revealed by his own testimony, to gross negligence."
Testing the conduct of the respondent here with the conduct of the defendant in the case just cited, we note the following:
1. Respondent was driving at twenty-five miles an hour up to the time he came within the rays of the lights in front. 2. When the rays of these lights struck his eyes and rendered him unable to see anything, even the highway, he was one hundred and fifty feet from the point of collision. 3. His vision was so obscured that he could not see the highway, it was impossible for him to see anything within the rays of this headlight nor anything past the rays of these lights, and after entering the rays of the lights he was continually in such rays until he passed them and hit the rear end of the trailer. 4. He did not see the truck or trailer until he was within approximately fifteen feet of it. 5. When the glare struck his eyes and blinded him so that he could not see anything, he reduced the speed of his car to fifteen miles per hour. 6. He did not put on his brakes nor turn off his gas or ignition nor attempt to further diminish his speed. 7. His brakes were in perfect condition and could have easily stopped his car within twenty feet. 8. In the case at bar there is no evidence as to whether or not the plaintiff anticipated the presence of others on the highway, but he did know that the car whose lights were blinding him was either stopped or practically so.
The only essential difference between the position of the respondent here and the defendant in the case of Hatzakorzian v. Rucker-Fuller Desk Co., supra, is that in that case the deceased was not negligent, while in this case we must assume that the agent of appellant was negligent. But the question of contributory negligence must be determined without regard to any negligence on the part of the defendant. Hutson v. Southern Cal. Ry. Co., 150 Cal. 701, 89 P. 1093.
It is to be observed that the respondent here, under the circumstances here shown, would be more certainly guilty of negligence than would be the driver of an automobile who is temporarily blinded by the bright lights of a swiftly passing car, in which case there might not be sufficient time after entering the direct rays of the light to stop or slow down sufficiently to have complete control of the car before the obstruction is passed. The respondent here, after finding himself in a position where he could see absolutely nothing, proceeded blindly for one hundred and fifty feet, when, according to his own testimony, he could have stopped easily in twenty feet.
Under the authorities in California, where the injured party proceeds on his way while in a position where he cannot see, the question of contributory negligence is usually one of law. White v. Davis (Cal.App.) 284 P. 1086. The inference that this respondent was negligent appears to us to be irresistible. Van Praag v. Gale, 107 Cal. 438, 40 P. 555. Taking the facts most favorable to respondent, and as testified to by him, no question of fact remained to be submitted to the jury.
Under our view of this portion of the case, it becomes unnecessary to consider the other points raised on this appeal.
The judgment is reversed, with directions to the trial court to enter judgment in favor of the defendant.
I concur: MARKS, J.
Justice Erwin W. OWEN, pro tem., deeming himself disqualified, does not participate herein.