Garibaldi v. Borchers Bros.

309 P.2d 23, 48 Cal. 2d 283, 1957 Cal. LEXIS 182

• Court: California Supreme Court
• Decided: April 9, 1957
• Docket: S. F. 19326
• Status: Published

Opinions

SPENCE, J.

Plaintiffs, father and minor son, appeal from a judgment in favor of defendants in an action for damages for personal injuries sustained by the son when he came in contact with defendants’ truck. They maintain that the court committed prejudicial error in instructing the jury. Viewing the evidence in the light most favorable to their contentions, the record does not support their position.

The accident occurred approximately midway between intersections on Sunol Street in San Jose on August 19, 1952, about 10:30 a. m. Sunol Street runs north and south, and is 30 feet wide. There are residences on both sides of the street in this area. At the time of the accident, cars were parked solidly along the west side of Sunol Street, leaving two lanes of traffic open. No parking was permitted on the east side. A dirt strip four feet wide extended between the sidewalk and the curb on this east side.

Plaintiff minor, then 8% years old, and his 7-year-old sister were walking north on the sidewalk on the east side of the street. Defendants’ concrete mixer truck was also proceeding north on the east side of the street. The driver saw the children as he approached them and he kept them under observation until his truck reached a point about 15 feet south of where they then were, when he looked straight ahead. After he had passed the children he heard a scream and the sound of something hitting the side of the truck. The boy was found lying in the street near the east curb. A mark on the truck indicated that the point of contact was on the right rear mudguard, 12 feet from the front of the truck.

Defendant driver testified that he first observed the children when he was 200 to 250 feet from them • that his view of them was unobstructed; that his speed then was about 20 miles per hour; that there was traffic approaching from the opposite direction; that his truck was proceeding about 3 feet from the east curb; that when about 100 feet from the place of the accident, he reduced his speed to 15 miles per hour; that the children’s backs were toward him and they did not look at him at any time; that they were “on a hop and a skip down the sidewalk”; and that they “kind of jacked toward the west of the sidewalk.” He further testified that he did not see the children leave the sidewalk or make any movement indicating that they were going on the street, but he admitted having told the police officer at the scene of the accident that he saw the boy step to the curb. The driver also testified that he did not sound his horn as he approached the children and only “lightly applied” the brakes; that it was only after he heard the scream, that he really applied the brakes and stopped “as quickly as [he] could” nest to the curb.

The boy could not remember the accident. His sister, 9 years old at the time of the trial, testified that she and her brother went from the sidewalk onto the dirt strip, where they waited for one northbound truck to pass, and then “when the second one (defendants’) was coming, my brother started to go out by the curb, and I don’t think he saw the truck, he was looking at me, and he told me to get back on the sidewalk, and so I was in the dirt strip and the truck came along and hit him.” . A neighbor testified that while she did not see the boy hit, she had noticed defendants’ truck as it passed her house, which was just before the place of the accident; that it swerved toward the east curb because of an oncoming southbound truck; and that she estimated defendants’ trnck was then going about 30 miles per hour. Defendants’ truck, with its load of concrete, weighed about 15 tons.

At plaintiffs’ request, the jury was instructed on the last clear chance doctrine. The formula prescribing the essential conditions for application of that doctrine has been recently restated. (Brandelius v. City & County of San Francisco, 47 Cal.2d 729, 743 [306 P.2d 432].) Such restatement was based upon the formula appearing in other decisions of this court. (Daniels v. City & County of San Francisco, 40 Cal.2d 614, 619 [255 P.2d 785]; Peterson v. Burkhalter, 38 Cal.2d 107, 109-110 [237 P.2d 977]; Girdner v. Union Oil Co., 216 Cal. 197, 202 [13 P.2d 915].)

The parties first are in dispute. as to whether the last clear chance doctrine was applicable at all here. Defendants claim that the evidence only shows that the boy stepped from his “place of safety” on the sidewalk or curb and into the roadway after he had left the truck driver’s view as the truck proceeded past him; that- until the boy entered the roadway he was not in a “position of danger” (cf. Dalley v. Williams, 73 Cal.App.2d 427, 435 [166 P.2d 595]), at which time he apparently ran into the rear side of the truck; and the truck driver therefore had no chance of avoiding the impact. It seems difficult to find a basis for application of the doctrine in view of the evidence presented and more particularly, in view of the account of the only eye-witness to the actual happening of the accident, the boy’s sister. Her testimony indicated that as the boy walked toward the curb, he realized the danger of venturing into the roadway while trucks were passing and, in fact, told her to get back on the sidewalk as they waited. But assuming for the purpose of .discussion that under any possible view of the evidence the last clear chance doctrine could be deemed applicable, the jury was instructed with respect to that doctrine and apparently did not find all the necessary conditions for its application to exist. Plaintiffs do not challenge the sufficiency of the evidence to sustain the adverse verdict, but they do contend that the court erred in its omission of their proposed modification of BAJI 205.

The instruction given by the court followed the exact language of BAJI 205. Plaintiffs proposed this BAJI instruction but had added to paragraph “Third” thereof the following clause, which is italicized: “Third: That the (truck driver) had actual knowledge of (the boy’s) perilous situation, or that (the driver) knew facts from which a reasonable person would have believed that (the boy) was in peril.” This italicized portion was not given. The BAJI instruction on last clear chance, in unmodified form, was analyzed recently in Brandelius v. City & County of San Francisco, supra, 47 Cal.2d 729. It was there held to be erroneous as it was found to be “misleading” and “confusing” in its amplification of the prescribed elements for application of the doctrine. Plaintiffs’ proposed modification of the third paragraph of the BAJI instruction would obviously have increased the already existing confusion in the BAJI instruction. We therefore conclude that plaintiffs may not successfully complain of the failure of the trial court to include plaintiffs’ proposed modification in the BAJI instruction, which instruction was given at plaintiffs’ request.

Plaintiffs argue that the force of the stated last clear chance doctrine was nullified by the giving of the following instruction on continuing negligence. (BAJI 205-A, Third Paragraph): “The Doctrine of Last Clear Chance is invoked to defeat the defense of contributory negligence only in a case when, after plaintiff’s negligence has put him into a position of danger, its work as an efficient agent of causation ceases, and it does not play a part in proximately causing the accident. When, on the other hand, a person’s negligence not only places him in a position of danger, but thereafter it or its effect continues, and as a proximately causing factor, brings about, or helps to bring about, the accident, then the law of contributory negligence applies, and such person may not recover.” Plaintiffs object to this instruction, claiming that it declares that if plaintiff continues to be negligent up to the moment of the impact, he cannot recover from the defendant who failed to exercise the last clear chance to avert the accident, even though plaintiff’s negligence was not a proximate cause thereof. Such proposition, of course, is not the law (Doran v. City & County of San Francisco, 44 Cal.2d 477, 486-487 [283 P.2d 1] ; Sills v. Los Angeles Transit Lines, 40 Cal.2d 630, 639 [255 P.2d 795]), and the instruction does not so state. The first sentence states in effect that the doctrine does not apply unless the plaintiff’s negligence has become “remote in causation.” (Center v. Yellow Cab Co., 216 Cal. 205, 207-208 [13 P.2d 918].) The second sentence states that if the plaintiff’s negligence or its effect continues so as to be a “proximate cause” of the accident, then such negligence will bar a recovery. (Gillette v. City of San Francisco, 58 [136 P.2d 611].) Thus, the instruction is in line with the authorities dealing with the last clear chance doctrine which have rationalized that doctrine, in its relation to the doctrine of contributory negligence, on the basis of proximate cause. (Sparks v. Bedinger, 44 Cal.2d 121, 124-125 [279 P.2d 971]; Girdner v. Union Oil Co., supra, 216 Cal. 197, 203-204; see annos: 92 A.L.R. 47; 119 A.L.R. 1041; 171 A.L.R. 365.)

However, while this instruction may be technically correct, it might be argued that it could be confusing to a lay jury were it not for other considerations. The instruction was immediately preceded by the general last clear chance instruction (BAJI 205), reciting the elements of the doctrine, including the circumstance of the negligent plaintiff totally unaware of his impending peril, and concluding with the statement that if all the prescribed “conditions [were] found” to exist “with respect to the accident in question,” then the jury “must find against the defense of contributory negligence . . . because under such conditions the law holds the defendant liable for any injury suffered by [the] plaintiff and proximately resulting from the accident despite the negligence of [the] plaintiff.” (Emphasis added.) With these instructions so submitting plaintiffs’ right to recovery in terms of proximate cause, it seems reasonable to assume that the jury realized that in this as “in every case of negligent unawareness plaintiff’s negligence continues to the very time of the injury, but if the elements of the last clear chance doctrine are present that rule nonetheless applies.” (Overacker v. Key System, 99 Cal.App.2d 281, 284 [221 P.2d 754].) Accordingly, plaintiffs’ objection to the instruction on continuing negligence may not prevail. (See Clark v. Vieroth, 141 Cal.App.2d 462, 465-466 [296 P.2d 823].)

Before concluding this phase of the discussion we should state that it appears that any instruction such as BAJI 205-A, Third Paragraph, is technical in nature and is of little, if any, assistance to the average jury in applying the last clear chance doctrine. It would be more helpful, in our opinion, if the courts would frankly recognize that the last clear chance doctrine is in reality an exception to, or modification of, the ordinary rules making plaintiff’s contributory negligence a bar to plaintiff’s recovery. (See Prosser on Torts, second ed., 1955, p. 290.) In other words, when all the essential elements for the application of the last clear chance are present, then the negligence of the defendant, who failed to exercise the last clear chance to avoid the accident, is deemed in law to be the sole proximate cause of the accident; and under these circumstances, the defendant may be held responsible to plaintiff for the resulting damage despite the contributory negligence of plaintiff. An instruction to that effect, coupled with proper instructions on the essential elements of the last clear chance doctrine, would give the jury a clearer understanding of the real issues for its determination and would avoid complicating the jury’s deliberations by instructions which place upon the jurors the burden of rationalizing their findings and conclusions with the ordinary concepts of proximate cause.

Plaintiffs next contend that the jury was erroneously instructed that the truck driver was entitled to assume that the injured boy would obey the law without regard for his tender age. The challenged instruction reads as follows: “A person who, himself, is exercising ordinary care has a right to assume that others, too, will perform their duty under the law, and he has a further right to rely and act on that assumption. Thus it is not negligence for such a person to fail to anticipate an accident which can be occasioned only by a violation of law or duty by another. However, an exception should be noted-, the rights just defined do not exist when it is reasonably apparent to one, or in the exercise of ordinary care would be apparent to him, that another is not going to perform his duty. ’ ’ (Emphasis added.) This instruction must be considered with the instructions, requested by plaintiffs, which preceded it: ‘‘Ordinarily it is necessary to exercise greater caution for the protection and safety of a young child than for an adult who possesses normal physical and mental faculties. A person operating a motor vehicle must anticipate the ordinary behavior of children. The fact that they usually cannot and do not exercise the same degree of prudence for their own safety as adults, that they often are thoughtless and impulsive, imposes a duty to exercise a proportional vigilance and caution on a person operating a motor vehicle, and from whose conduct injury to a child may result. (Emphasis added.)

“The presence of children is in itself a warning requiring exercise of care for their safety. The conduct of children is unpredictable and a person operating a motor vehicle should anticipate their thoughtlessness and impulsiveness. A greater degree of care is required of a driver of a vehicle when he knows a small child is at play than in a case where a person of mature discretion is involved.”

Considering these last mentioned instructions together, it is clear that the jury was properly told that a child is only held to a standard of care in accordance with his age and the existing conditions (Galbraith v. Thompson, 108 Cal.App.2d 617, 621 [239 P.2d 468]), and that here the driver was only entitled to assume that the children would act as other children of like age would ordinarily act under similar circumstances. (Hilyar v. Union Ice Co., 45 Cal.2d 30, 36-37 [286 P.2d 21].)

Plaintiffs next contend that the jury was instructed according to the rules required of an adult pedestrian. Such is not the case. At plaintiffs’ request, the accepted instruction on the standard of care required of a minor was given "(BAJI 147), the first sentence of which reads: “A child is not held to the same standard' of conduct as an adult and is only required to exercise that degree of care which ordinarily is exercised by children of like age, mental capacity and experience.” Then followed the general instruction, of which plaintiffs complain, as to the duty owed by a pedestrian while crossing a street. (BAJI 201-0.) This latter instruction, given at defendants’ request but with certain modifications in recognition of the minor plaintiff’s status, reads: “Before attempting to cross a street that is being used for the traffic of motor vehicles, it is a pedestrian’s duty to make reasonable observations to learn the traffic conditions confronting him; to look to that vicinity from which, were a vehicle approaching, it would immediately endanger his passage; and to try to make a sensible decision whether it is reasonably safe to. attempt the crossing. 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, the degree of ordinary care in the case of a minor is that ordinarily exercised Toy a child of like age, mental capacity and experience, under the same or similar circumstances.” (Emphasis added.) Thus it is clear that the instructions emphasized the determinative consideration to be not whether the minor plaintiff acted as an adult should, but whether he used the care ordinarily exercised by like children in similar circumstances. Accordingly, the matter of whether or not the boy was chargeable with contributory negligence in the happening of the accident was. a question of fact properly left to the jury. (Raggio v. Mallory, 10 Cal.2d 723, 727 [76 P.2d 660] ; Richardson v. Ribosso, 120 Cal.App. 641, 643 [8 P.2d 226]; De Nardi v. Palanca, 120 Cal.App. 371, 376 [8 P.2d 220].)

Nor is there merit to plaintiffs’ further claim that the trial court erroneously instructed the jury that the minor plaintiff was required to yield the right of way to defendants’ truck. The criticized instruction reads as follows: “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.

“This duty to yield the right of way is not am absolute one, and it is for you to determine from the facts, whether the minor plaintiff, Albert Garibaldi, exercised reasonable care under the circumstances, that is, the degree of care ordinarily exercised by a child of like age, mental capacity and experience.” (Emphasis added.) This instruction supplied the precise language that was found wanting in the cases to which plaintiffs refer. (Cole v. Ridings, 95 Cal.App.2d 136, 141 [212 P.2d 597]; Shipway v. Monise, 59 Cal.App.2d 565, 571 [139 P.2d 60].) The second paragraph clearly and correctly informed the jury that the boy’s duty to yield the right of way was not absolute, and that the basic test was whether he as a minor exercised reasonable care under all the existing circumstances. (See Gavin v. Watt, 144 Cal.App.2d 238, 242-243 [300 P.2d 842].)

Plaintiffs next contend that the trial court erred in instructing the jury, at defendants’ request, that “Evidence of the oral admission of a party, other than his own testimony in this trial ought to be viewed by you with caution.” Plaintiffs claim that it was not proper to give this instruction because the truck driver at the trial admitted having made certain prior statements which were inconsistent with the account of the accident as given at the trial. These admissions then became a part of the driver’s own testimony and so did not come within the “viewing with caution” rule. But in addition to these admissions, there were other prior statements of the driver in evidence which at the trial he did not admit having made, and which warranted the giving of this cautionary instruction. (See Crawford v. Alioto, 105 Cal.App.2d 45, 50-51 [233 P.2d 148]; Freeman v. Nickerson, 77 Cal.App.2d 40, 62 [174 P.2d 688].)

Plaintiffs finally object to the trial court’s refusal to give their requested instruction on the existence of a prima facie speed limit of 25 miles per hour in effect at the time and place of the accident. It will be recalled that the accident happened in 1952 and prior to the 1953 amendment of section 511 of the Vehicle Code. They claim that Sunol Street was in a residence district (Veh. Code, § 90), where the prima facie speed limit was 25 miles per hour. (Ibid, § 511, subd. (b) (1).) Assuming that the accident happened in an area which might have qualified as a residence district, if properly signposted, the requested instruction was not proper unless there was evidence to show that speed limit signs were then in place at the entrance to the alleged residential district or to a contiguous residential district. (Daniels v. City & County of San Francisco, supra, 40 Cal.2d 614, 624; Guerra v. Brooks, 38 Cal.2d 16, 19-20 [236 P.2d 807]; Reynolds v. Filomeo, 38 Cal.2d 5, 11-13 [236 P.2d 801].) There was no evidence of such signposting other than the mention of a single sign at some indefinite location. Such vague and indefinite evidence was insufficient. Furthermore, the fastest that any witness stated that the truck was traveling at any time was about 30 miles per hour. The jury was fully and correctly instructed on the basic speed law (Veh. Code, § 510), and after an examination of the record, it reasonably appears that the jury found that the speed of the truck was not a vital factor in the happening of the accident.

The judgment is affirmed.

Gibson, C. J., Shenk, J., Traynor, J., Schauer, J., and MeComb, J., concurred.