Petersen v. Lewis

42 P.2d 311, 2 Cal. 2d 569, 1935 Cal. LEXIS 365

• Court: California Supreme Court
• Decided: February 28, 1935
• Docket: L. A. 14840
• Status: Published

Opinions

WASTE, C. J.

This cause was transferred to this court for hearing after decision and judgment in the District Court of Appeal. The facts, so far as material here, are sufficiently and clearly stated in the opinion prepared by Mr. Justice Marks of that court, and are as follows:

“The plaintiff was very seriously injured in an automobile collision in or near the intersection of McCall avenue and Gaither street in the city of Selma. The accident occurred at about 5 o’clock on the afternoon of July 29, 1931. On motion of the defendant the trial court instructed the jury to return a verdict in his favor. Judgment was entered upon this verdict and this appeal followed.

“McCall avenue, which has a pavement twenty feet in width in its center and is forty feet between curbs, runs north and south, and Gaither street intersects it at right angles. In both directions from the intersection, McCall avenue runs through a ‘residence district’. (See. 28%, Cal. Vehicle Act, 1929.) The intersection was an obstructed one where the driver of a vehicle approaching it did not have a clear and uninterrupted view of the traffic for a distance of two hundred feet on the intersecting street for the last one hundred feet of his approach to it. (Sec. 113, California Vehicle Act, 1929.) There were no ‘turning markers’ at the intersection.

“Just prior to the accident the defendant was driving his automobile, a coach with a two-wheel trailer attached, northerly on his right-hand side of McCall avenue at a lawful rate of speed. The coach was sixteen feet in length and the trailer ten and one-half feet long.” The plaintiff was riding as a guest in an automobile driven by Sidney Jensen which was following the defendant’s car north on McCall Avenue. Jensen was driving at a lawful rate of speed and on his own right-hand side of the street. About twenty feet south of the intersection defendant gave the arm signal for a left turn onto Gaither Street. “He started his left turn as soon as he reached the south line of Gaither street and completed it without passing to the right of the center of the intersection, and then parked his vehicles on the north side of Gaither street just west of McCall avenue.

“The defendant testified that when he was about forty feet south of the intersection he saw a car about three hundred feet north of Gaither street, approaching on McCall avenue. When he reached the intersection, and about the time he started his left turn, he saw that it was about one hundred fifty feet from the intersection and was being driven at a speed of forty-five or more miles an hour. This ear was being driven by Melvin Pelletier. The defendant proceeded with his turn at a speed of about ten miles an hour, and heard, but did not see, the collision between the Pelletier automobile and [the Jensen car] the one in which the plaintiff was riding. The defendant did not know a car was following him.

“ . . . The plaintiff was so seriously injured in the accident that he had no recollection of it. Pelletier died the next morning. The plaintiff relied upon the testimony of Jensen for a description of the accident.

“Jensen testified that, with the plaintiff riding as his guest, he was following the Lewis car at a distance of about seventy-five feet in traveling north on McCall avenue; that Lewis reduced his speed before entering the intersection and that the Jensen car was about forty feet back of the Lewis trailer when Lewis started his left turn; that Jensen’s view of the west half of McCall avenue was cut off by the body of the Lewis coach; that when Lewis had made sufficient of his left turn so that the coach body had crossed the center line of McCall avenue, Jensen saw the Pelletier automobile for the first time; that it was then on the west half of McCall avenue about twenty feet north of the north line of the intersection; that at that time the rear of the Lewis trailer had not crossed to the west side of the center line of McCall avenue; that such line passed under the trailer; that Pelletier was driving ‘fast’ and swerved his car sharply [to the left] onto the east side of McCall avenue and then swerved it sharply towards the center; that Jensen swerved his ear to his right until his right wheels were off the pavement; that the Pelletier automobile struck the Jensen ear on its right front and the injuries to plaintiff followed.”

From this record it appears that Pelletier was driving his automobile at a rate of speed in excess of that permitted by section 113 of the California Vehicle Act as in effect at the time of the accident. It also as affirmatively appears that the defendant Lewis violated the provisions of section 129 of the California Vehicle Act in passing to the left of the center of the intersection, and of section 130 of the same act in failing to give the proper arm signal over the required space before commencing his left turn. It therefore must be conceded that both of these drivers were guilty of negligence per se. The driver of any vehicle upon a public highway, before starting, turning or stopping such vehicle shall first see that such movement can be made in safety, and if it cannot be made in safety, shall wait until it can be made in safety. (California Vehicle Act, see. 130.) The question on this appeal therefore resolves itself into this: Did the negligence of either of the drivers proximately contribute to the accident! So far as this cause is concerned, if the action of defendant Lewis was the proximate cause of the accident, the trial court was in error in granting the motion for a directed verdict.

The evidence here is direct and in no way circumstantial. On the established facts, we are of the opinion that the directed verdict was properly ordered. Notwithstanding the negligence per se of the defendant Lewis and the deceased Pelletier, we are not convinced that such negligence was the proximate cause of the injury. Such a conclusion can only be reached through surmise and speculation. The burden o.f proving that, such negligence was the cause of the injury was upon the plaintiff. By proving the negligence of the defendant without in some way fastening that negligence to the injury, a case is not made out. (County of Alameda v. Tieslau, 44 Cal. App. 332, 337 [186 Pac. 398], and cases cited therein.) Assuming, only for argument, that Pelletier, who is not here to answer for himself, was negligent, and that his negligence may have been the proximate cause of the collision between the automobiles, and the resulting injury to the plaintiff, a careful analysis of the évidenee and a thorough study of the details of the accident fail to show such a proximate or necessary connection between the negligence of the defendant Lewis and the happening of the accident as to render him liable for plaintiff’s injuries. (Puckhaber v. Southern Pacific Co., 132 Cal. 363, 364 et seq. [64 Pac. 480].) We deem unnecessary further citation of authorities on this rule of law so well established in this jurisdiction.

The judgment is affirmed.

Curtis, J., Langdon, J., Shenk, J., Thompson, J., and Preston, J., concurred.