Cucinella v. Weston Biscuit Co.

265 P.2d 513, 42 Cal. 2d 71, 1954 Cal. LEXIS 158

• Court: California Supreme Court
• Decided: January 12, 1954
• Docket: L. A. 22855
• Status: Published

Opinions

SCHAUER, J.

Plaintiffs, who are. husband and wife, appeal from an adverse judgment entered upon a jury verdict in their action to recover damages resulting when plaintiff wife was struck by an automobile while she was attempting to walk across San Fernando Road in the city of Los Angeles. We have concluded that no prejudicial error or miscarriage of justice is shown and that the judgment should be affirmed. (Cal. Const., art. VI, § 4½.)

The accident occurred about 9:30 in the morning of April 25, 1950. The weather was clear and dry and visibility was good. Plaintiff¹ had walked in an easterly direction halfway across San Fernando Road, a north-south highway at the point involved, some 24 feet south of its intersection with Lacy Street, and had paused at the double white line in the center of the highway, waiting for traffic to “give me a chance” to complete the crossing. She testified that she suddenly became frightened by an oncoming truck and, without looking further at traffic, turned around in a clockwise direction and attempted to return to the westerly curb from which she had started. At a point 8 or 9 feet from such curb she was struck by an automobile traveling south on San Fernando and driven by defendant Smith in the course of his employment by defendant Weston Biscuit Company, Inc. Plaintiff did not remember taking any steps after her turn in the center of San Fernando, and the next she knew was when she was lying in bed in the hospital.

Defendant Smith testified that he first saw plaintiff when he was some 70 or 80 feet away from the" point at which she attempted to return to the curb; that he was then traveling 30 or 35 miles an hour, and no ears were ahead of him; plaintiff “ran out into the center of the street and appeared to take two or three steps past the center, then she whirled to her right and ran back towards the west curb ... in ap-' proximately a straight line.” Defendant was startled and “slammed on my brakes.” He continued “to hold the brakes on” until his car stopped, and stated he was going approximately 3 miles an hour when he struck plaintiff. Defendant’s tires “laid down” 72 feet of “skid-marks” in the street, from which an expert witness computed that the minimum speed the car was traveling “when it first started to lay down skid-marks” was 36 miles an hour.

The drivers of two cars which were traveling immediately behind defendant and in the same (right hand or “curb”) lane of traffic both testified that all three cars were traveling approximately 30 to 35 miles an hour, and both drivers saw plaintiff suddenly turn to her right in the center of San Fernando and start to run back in a straight line to the curb. One of the drivers testified that “There was a lot of heavy traffic . . . there on San Fernando Road that morning.” Other evidence established that morning traffic on San Fernando is “heavy” during the period from 8 to 10 o’clock.

Plaintiff's first contention on appeal is that the trial court erred in admitting evidence of the “average speed” traveled by vehicles in the area of the accident, in the face of testimony by a police officer working in the area that San Fernando Road was posted with 25-mile-an-hour speed limit signs at points approximately iy2 miles north and 1% miles south of the Lacy Street intersection. On cross-examination by counsel for defendant the officer was permitted to also testify, over objection by plaintiff, that he would “estimate” that “the average speed usually traveled at that time by motorists” was “about 30 miles an hour along there.” Other evidence in the record discloses that for some five years immediately preceding the accident plaintiff had been intermittently employed in a laundry at the San Fernando and Lacy intersection, and that defendant drove “up and down San Fernando” on an average of several times a week and thus was also familiar with the area in which the accident occurred. Plaintiff’s arguments appear to be predicated upon the assumption that the evidence as to average speed of traffic in the area was offered by defendant solely to excuse his own conduct in driving at a rate admittedly in excess of the posted limits. However, as in Fowler v. Key System Transit Lines (1951), 37 Cal.2d 65, 68 [230 P.2d 339], defendant pleaded that plaintiff was herself guilty of negligence proximately contributing to her injuries. Under such circumstances and in view of the undisputed fact that plaintiff attempted to return to the curb without looking for traffic which might be approaching, it appears that here, as in the Fowler case, the evidence of custom bore on the issue of contributory negligence and was “admissible as a part of the res gestae for the purpose of giving to the jury full knowledge of all the facts and circumstances which existed at the time and place of the accident, which were known to the parties, so as to permit the jury to pass upon the question of whether plaintiff conducted himself as an ordinary and reasonable person would have conducted himself in the light of all of the circumstances.” (Muir v. Cheney Bros. (1944), 64 Cal.App.2d 55, 63 [148 P.2d 138], quoted at page 69 of Fowler v. Key System Transit Lines, supra.)

Plaintiff next urges error in the trial court’s refusal to permit her to prove that during her employment by the laundry she as well as other laundry employes had customarily crossed San Fernando at the point here in question, that formerly a crosswalk had been marked there with white lines, and that a marked crosswalk had been authorized and directed at the point by “competent city authority.” However, other testimony showed that between 125 and 150 pedestrians crossed San Fernando Road daily at the point between 7 a. m. and 6 p. m., that some six months prior to the accident San Fernando Road had been resurfaced, and that at the time of the accident two rows of metal buttons extended out from the west curb some 7 to 12 feet into the roadway which was 56 feet wide. Moreover, following objection by defendant’s counsel to a question put by plaintiff’s attorney as to how far the buttons extended out into San Fernando before it was resurfaced, and the attorney’s statement that the witness would answer that the “metal markers extended completely across the street,” the court ruled that “I will permit you to ask him i£ the buttons had previously gone across the street, or had at the time it was re-surfaced . . .” Although the record does not indicate that plaintiff’s counsel thereafter took advantage of the court’s ruling, it is apparent that plaintiff is not in a position to complain, since opportunity was thus provided her to prove that a marked crosswalk formerly existed. Plaintiff cites no authority and none has been discovered supporting her claim that although a crosswalk actually was not marked at the time of the accident and had not been during the previous six months, she should have been permitted to prove that a marked crosswalk had been authorized and directed by ” competent city authority. ’ ’ On the record we perceive no error in the ruling. Unless an authorized marked crosswalk is actually marked the mere fact that it has been authorized cannot affect the duties of persons using the street.

Finally, plaintiff contends that error prejudicial to her case resulted from the court’s refusal to give the following two instructions requested by plaintiff by number (Nos. 201-E and 102-A; see paragraph (a) of Rule 16, Rules for Superior Courts, 33 Cal.2d 7) from “California Jury Instructions, Civil”:

No. 201-E: “While it is the duty of both the driver of a motor vehicle and a pedestrian, using a public roadway, to exercise ordinary care, that duty does not require necessarily the same amount² of caution from each. The driver of a motor vehicle, when ordinarily careful, will be alertly conscious of the fact that he is in charge of a machine capable of projecting into serious consequences any negligence of his own. Thus his caution must be adequate to that responsibility as related to all the surrounding circumstances. A pedestrian, on the other hand, has only his own physical body to manage and with which to set in motion a cause of injury. While, usually, that fact limits his capacity to cause injury, as compared with a vehicle driver, still, in exercising ordinary care, he, too, will be alertly conscious of the mechanical power acting, or that may act, on the public roadway, and of the possible, serious consequences from any conflict between himself and such forces. And the caution required of him is measured by the possibilities of injury apparent to him in the conditions at hand, or that would be apparent to a person of ordinary prudence in the same position.”

No. 102-A: “Inasmuch as the amount of caution used by the ordinary prudent person varies in direct proportion to the danger known to be involved in his undertaking, it follows that in the exercise of ordinary care the amount of caution required will vary in accordance with the nature of the act and the surrounding circumstances. To put the matter in another way, the amount of caution required by the law increases as does the danger that reasonably should be apprehended.”

At defendants’ request, the court did instruct as follows: “It is the duty of every person using a public highway, whether a pedestrian or the driver of any kind of vehicle, to exercise ordinary care at all times to avoid placing himself or others in danger and to avoid a collision,” and that “The law imposes upon the operator of any vehicle using a public highway, and upon a pedestrian, the same duty, each to exercise ordinary care to avoid causing an accident from which injury might result. This duty continues even when one has the right of way over the other ...”

Concerning the duties of a pedestrian attempting to cross a street, the court, at defendants’ request, included the following instructions: “What observations he should make, and what he should do for his own safety, while crossing the street are matters which the law does not attempt to regulate in detail and for all occasions, except in this respect: it does place upon him the continuing duty to exercise ordinary care to avoid an accident . . . While as to a roadway locality such as that involved in this case, a pedestrian has a right to cross the road at any point, these factors of consideration enter into the question of what conduct is required of him in the exercise of ordinary care. First: if he crosses at a point other than within a marked crosswalk or within an unmarked crosswalk at an intersection, the law requires him to yield the right of way to all vehicles on the roadway so near as to constitute an immediate hazard. Second: the amount of caution required to constitute ordinary care increases as does the danger that a reasonably prudent person, in like position, would apprehend in the situation. For example, heavy vehicular traffic, fast traffic, poor visibility, obstructions to view—any of these or any other perceivable factor increasing the hazard, increases the amount of eantion which an ordinarily prudent person would use.”

Relating specifically to the duties of the operator of a motor vehicle the court instructed, among other things, that “Section 671 of the Vehicle Code in effect at the time of the accident provided as follows: ‘The driver of a motor vehicle when reasonably necessary to insure safe operation shall give audible warning with his horn. Such horn shall not otherwise be used.’

“It will be noted that the law does not prescribe the specific circumstances under which a horn shall be used, but provides that warning shall be given when reasonably necessary to insure safety. This means that the question whether or not the horn should have been sounded in this case is a question of fact for you to decide in the light of all the surrounding circumstances, judging the defendant’s conduct by what might have been expected of a reasonably prudent person under similar circumstances.

“The speed at which a vehicle travels upon a highway, considered as an isolated fact and simply in terms of so many miles an hour, is not proof either of negligence or of the exercise of ordinary care.

“Whether that speed is a negligent one is a question of fact, the answer to which depends on all the surrounding circumstances.

“The basic speed law of this state, as provided in Section 510 of the Vehicle Code, is as follows:

“ ‘No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent, having due regard for the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property. ’

“A violation of this basic rule is negligence.

“You are instructed that the Vehicle Code of the State of California, in full force and effect at the time of the accident, provided as follows:

“ Section 511. The speed of any vehicle upon a highway not in excess of the limits specified in this section or established as authorized in this code is lawful unless clearly proved to be in violation of the basic rule declared in Section 510 hereof.

“ ‘The prima facie limits referred to above are as follows and the same shall be applicable unless changed as authorized in this code, if so changed, then only when signs have been erected giving notice thereof, in which event the speed designated on the sign shall be the prima facie limit: Twenty-five miles per hour.

“ ‘(1) In a business or residence district. ’ . . .

‘ ‘ Conduct which is in violation of any of the statutes just read to you constitutes negligence per se. 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. ’ ’

A further instruction requested by defendants and given was that “the fact of having the right of way, if such be the fact, [does not] excuse one from the exercise of ordinary care to avoid causing an accident.” At plaintiffs’ request, an instruction on imminent peril was also given.³

The jury, midway in its deliberations, returned to the courtroom with a request that the instruction on imminent peril be reread, and the court thereupon again read “a group of instructions which” the jury were again told “should be considered together, ’ ’ including among others the imminent peril instruction and the instruction that “It is the duty of every person using a public highway, whether a pedestrian or the driver of any kind of vehicle, to exercise ordinary care at all times to avoid placing himself or others in danger and to avoid a collision” and that the duty of exercising ordinary care “continues even when one has the right of way over the other. ’ ’

Another instruction given (but not re-read to the jury) was that even though a pedestrian is crossing outside a crosswalk and thus is obliged to yield the right of way to vehicles on the roadway the vehicle driver is not thereby relieved “from the duty to exercise due care for the safety of any pedestrian upon a roadway.”

“Ordinary care” was defined to the jury as “that care which persons of ordinary prudence exercise in the management of their own affairs in order to avoid injury to themselves or to others.”

It should be mentioned also that the court cautioned the jury that “If in these instructions, any rule, direction or idea be stated in varying ways, no emphasis thereon is intended by me, and none must be inferred by you. For that reason, you are not to single out any certain sentence, or any individual point or instruction, and ignore the others, but you are to consider all the instructions and as a whole, and to regard each in the light of all the others.”

Plaintiffs, in support of their contention that instruction No. 201-E should have been given, rely upon Dawson v. Lalanne (1937), 22 Cal.App.2d 314 [70 P.2d 1002], in which a judgment in favor of defendant was reversed on the sole ground of error in failing to instruct the jury that “the plaintiff and the defendant were both chargeable only with the exercise of ordinary care, but a greater amount of such care was required of the defendant at the time of the accident in question by reason of the fact that he was driving and operating an automobile, which is an instrumentality capable of inflicting serious and often fatal injuries upon others using the highway.” The court there declared that “This instruction clearly states the rule of law applicable to the facts of the case and has been approved in a number of cases,” as follows: Weihe v. Rathjen Mercantile Co. (1917), 34 Cal.App. 302 [167 P. 287] ; Raymond v. Hill (1914), 168 Cal. 473, 483 [143 P. 743] ; Vedder v. Bireley (1928), 92 Cal.App. 52 [267 P. 724] ; Pinello v. Taylor (1933), 128 [17 P.2d 1039]. Since the Dawson decision, supra, numerous other cases have approved instructions couched in substantially the same language (see Whicker v. Crescent Auto Co. (1937), 20 Cal.App.2d 240, 244 [66 P.2d 749]; Broun v. Blair (1938), 26 Cal.App.2d 613, 615 [80 P.2d 95] ; Martin v. Vierra (1939), 34 Cal.App.2d 86, 93 [93 P.2d 261]; McNear v. Pacific Greyhound Lines (1944), 63 Cal.App.2d 11, 18-19 [146 P.2d 34] ; Kuist v. Curran (1953), 116 Cal.App.2d 404, 406-408 [253 P.2d 281] ; Geisler v. Rugh (1937), 19 Cal.App.2d 738, 742 [66 P.2d 671] ; cf. De Greek v. Freeman (1930), 108 Cal.App. ,645, 646 [291 P. 854]; Morgan v. Los Angeles R. & G. Corp. (1930), 105 Cal.App. 224, 231 [287 P. 152]), and others have approved the B.A.J.I. instruction No. 201-E which was here offered by plaintiff (see Schulman v. Los Angeles Ry. Corp. (1941), 44 Cal.App.2d 122,128 [111 P.2d 924]; Reed v. Stroh (1942), 54 Cal.App.2d 183, 189 [128 P.2d 829]; O’Brien v. Schellberg (1943), 59 Cal.App.2d 764, 770 [140 P.2d 159]).

It is apparent that the intent of the instructions approved in the cited cases was to inform the jury that the elements of action constituting conduct which qualifies as ordinary care are those commensurable with the responsibility involved and depend upon the character of the instrumentality being used or the nature of the act which is being performed, all as related to the surrounding circumstances. If the particular instruction here requested by plaintiffs (No. 201-E) had consisted of only the first sentence thereof, which contains the expression “amount of caution,” it perhaps would have been confusing to a jury. With the added explanation, however, set forth in the instruction, of the meaning of the quoted expression as related to the respective duties of driver and of pedestrian the instruction as a whole correctly states the law and explains that what is meant by varying amounts of caution is that the elements of conduct entering into ordinary care or caution will vary and must be related to the particular circumstances involved, including the character of the act being performed. Both in the instruction approved in Dawson v. Lalanne (1937), supra, 22 Cal.App.2d 314, and in the B.A.J.I. instruction here requested by plaintiffs the meaning intended to be conveyed is the same. Another effort to express such meaning is found in Reed v. Stroh (1942), supra, 54 Cal.App.2d 183,189, stated as follows: “They [the instructions] require that both motorist and pedestrian exercise ordinary care; that the driver must be conscious of operating an engine capable of immense and potential danger, and that the pedestrian must be conscious of the fact that he is in the midst of such dangers on the highway and guard against the possibility of injury apparent to a careful, prudent person.” Tested by the standards above stated, and the circumstances of this case, instruction No. 201-E correctly states the law and, as its subject matter was not specifically covered by other instructions, it should have been given. Before determining whether the failure to give such instruction was prejudicial it is proper to recall, that the trial court also refused, as above mentioned, to give plaintiffs’ requested instruction No. 102-A, which states that the amount of caution required of the ordinary prudent person increases as does the danger that reasonably should be apprehended. Although refusing to give No. 102-A, the court at defendants’ request instructed that “While ... a pedestrian has a right to cross the road at any point . . . the law requires him to yield the right of way to all vehicles on the roadway so near as to constitute an immediate hazard . . . [and] the amount of caution required to constitute ordinary care increases as does the danger that a reasonably prudent person, in like position, would apprehend in the situation.”

In view of the seeming emphasis thus placed by some of the instructions on the duties of the pedestrian, it is our view that the court might well have given plaintiffs’ requested No. 102-A (which in its terms would apply to drivers as well as pedestrians) as well as No. 201-E. Such emphasis, however, is at most a relative matter and is something the appearance of which cannot always be avoided; it comes not from any misstatement of the law but from necessarily singling out the pedestrian in order to state accurately and fully the law applicable to any pedestrian under circumstances and in situations described in the evidence. Other instructions which in a like sense “emphasize” the duties of the operator of a motor vehicle were given. Such instructions are designed not to give unfair prominence to the obligations of the operator of a motor vehicle but to fully and fairly state the law applicable to any vehicle operator in the circumstances and situations described in the evidence. The fault in this case is not one of affirmative misstatement of any rule of law but of failure to explain more fully that in the application of the general rules of law which were correctly declared, the jury, as a matter of law, as well as factually in using common sense, good judgment and general knowledge, should recognize that the force of inertia of a heavy, fast moving vehicle is greater than that of a comparatively light and slow moving pedestrian and that the respectively ensuing potentialities of harm and devolving responsibilities vary accordingly.

The close point in this case, if there is one, appears to us to depend on the interpretation of plaintiff’s own conduct as established by her testimony. If such conduct can be reconciled with the standards of ordinary care imposed on a pedestrian crossing a roadway at a place other than an intersection or marked crosswalk it would seem to be on the theory of sudden confrontation with imminent peril. As pointed out above, the instruction on imminent peril was twice read to the jury. So also, the jury were instructed fairly as to the meaning of ordinary care and were cautioned that if “any rule, direction or idea” had been stated in varying ways, no emphasis thereon was intended, “none must be inferred by you,” and “you are to consider all the instructions and as a whole, and to regard each in the light of all the others.”

The rule is that “No judgment shall be set aside ... on the ground of misdirection of the jury, or of the improper admission or rejection of evidence . . . unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”⁴ (Cal. Const., art. VT, § 4\ see, also, Loper v. Morrison (1944), 23 Cal.2d 600, 609 [145 P.2d 1] ; People v. De La Roi (1944), 23 Cal.2d. 692, 703 [146 P.2d 225, 151 P.2d 837]; Speck v. Sarver (1942), 20 Cal.2d 585, 589 [128 P.2d 16]; People v. Honeycutt (1946), 29 Cal.2d 52, 62 [172 P.2d 698]; People v. Sanchez (1947), 30 Cal.2d 560, 575 [184 P.2d 673]; Delzell v. Day (1950), 36 Cal.2d 349, 351-352 [223 P.2d 625]; Popejoy v. Hannon (1951), 37 Cal.2d 159, 169 [231 P.2d 484].) The burden is on the appellant in every case to show that the claimed error is prejudicial; i.e., that it has resulted in a miscarriage of justice. (Vaughn v. Jonas (1948), 31 Cal.2d 586, 601 [191 P.2d 432].) Consideration of the entire cause, including the evidence as presented by the record, falls short of leading us to the opinion that failure to give the two numbered instructions has resulted in a miscarriage of justice; hence, any error in refusing to give them does not appear to be prejudicial and does not justify reversal of the judgment.

For the reasons above stated the judgment is affirmed.

Gibson, C. J., Shenk, J., Traynor, J., and Spence, J., concurred.

Edmonds, J., concurred in the judgment.

1 Unless otherwise stated the designation “plaintiff” refers to .the injured wife.

2 Originally instruction No. 201-E used the word "degree” instead of "amount.” The inaccuracy of saying that a different "degree of care” may be exacted of the driver of an automobile as compared with a pedestrian is forcefully pointed out in Lasater v. Oakland Scavenger Co. (1945), 71 Cal.App.2d 217, 221 [162 P.2d 486]. As stated by the court there, “The decedent was struck by a truck while crossing a street in the darkness. Appellants proposed an instruction that by reason of the fact that she was dressed entirely in black she should have used ‘a greater degree of care’ for her own safety. The instruction was erroneous in using the word ‘degree’ instead of ‘quantum’ or ‘amount.’ The degree of care required of a person for his own safety is always the same, i.e., ordinary care, although in some circumstances the quantum or amount of care required to reach the degree of ordinary care is greater than in others. ’ ’

In 1950 instruction No. 201-E was amended by substituting the word "amount” for the word "degree.” Inasmuch as this trial took place in 1952, plaintiff must be considered to have requested the instruction as it reads subsequent to the 1950 amendment.

3 The imminent peril instruction reads 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 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 any 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. ’ ’

4 For illustrations or definitions of what may constitute a miscarriage of justice, see People v. Hall (1926), 199 Cal. 451, 458 [249 P. 859]; People v. Putnam (1942), 20 Cal.2d 885, 892 [129 P.2d 367]; People v. Rogers (1943), 22 Cal.2d 787, 807 [141 P.2d 722]; People v. Dail (1943), 22 Cal.2d 642, 650 [140 P.2d 828]; Daniels v. City & County of San Francisco (1953), 40 Cal.2d 614, 624 [255 P.2d 785]; Delzell v. Day, (1950), 36 Cal.2d 349, 351-352 [223 P.2d 625],