Speck v. Sarver , 20 Cal. 2d 585 ( 1942 )

CURTIS, J.

Defendants appeal from a judgment in favor of plaintiffs for damages for injuries arising out of an automobile collision.

The two automobiles involved approached from opposite directions on a narrow, winding highway and met in a head-on collision on a curve in the road. There was no white line marking the middle of the highway. A bank extended upward on the east or defendants’ side of the road,- and there was a steep slope extending downward on the west or plaintiffs’ side of the road. The plaintiffs testified that the defendants’ automobile was on the wrong side of the road and traveling at an excessive rate of speed immediately preceding the collision, while plaintiffs’ automobile was on the proper side of the road and traveling at a slow rate of speed. Plaintiff Matthew Speck, the driver of the car, testified that just prior to the impact he swerved slightly toward the center of the road to avoid going over the bank. The defendant driver also turned in and the automobiles came to rest approximately in the center of the road. Philip Sarver, the driver of the defendants’ ear, testified that at all times he was driving on the proper side of the road at a moderate speed, while just before the collision plaintiff Speck was driving on the wrong side of the road. After the jury returned a verdict in favor of plaintiffs, a motion for a new trial was made by the defendants and denied by the trial court.

Upon this appeal it is urged that the evidence is insufficient to support the implied finding of the jury that the plaintiffs were free from negligence. In other words, it is contended that plaintiffs were guilty of contributory negligence as a matter of law. It is also urged that the court erred in giving a certain instruction to the jury, and that there was prejudicial misconduct on the part of plaintiffs’ attorney preventing defendants from having a fair trial.

There is no necessity for a detailed discussion of appellants’ first contention. From the brief recital of the facts herein and from the other evidence disclosed by the record, it is apparent that the jury was justified in making its implied finding that the plaintiffs were free from contributory negligence. The evidence is conflicting on this issue and the jury’s implied finding thereon is conclusive on appeal. (Taylor v. Oakland Scavenger Co., 17 Cal. (2d) 594 [110 P. (2d) 1044]; Flores v. Fitzgerald, 204 Cal. 374 [268 Pac. 369]; Smith v. Rothschild, 3 Cal. App. (2d) 273 [39 P. (2d) 464]; Wynne v. Wright, 105 Cal. App. 17 [286 Pac. 1057].)

The instruction complained of is as follows: “In the absence of evidence to the contrary, the law presumes that the plaintiffs did everything that reasonably prudent persons would have done under the circumstances for the protection of their safety. The presumption that plaintiffs were not guilty of contributory negligence is, in itself, a species of evidence which continues with the said plaintiffs throughout the trial of this action and unless and until overcome by evidence to the contrary. This presumption in favor of said plaintiffs must prevail until and unless it is overcome by satisfactory evidence to the contrary.”

The rebuttable presumption that a person takes ordinary care of his own concerns is declared in section 1963 (4) of the Code of Civil Procedure. An instruction as to the existence of this presumption may properly be given to the jury in certain situations. (See Westberg v. Willde, 14 Cal. (2d) 360 [94 P. (2d) 590]; Ellison v. Lang Transportation Co., 12 Cal. (2d) 355 [84 P. (2d) 510]; Downing v. Southern Pacific Co., 15 Cal. App. (2d) 246 [59 P. (2d) 578].) Such an instruction, however, should not be given where the evidence introduced by the plaintiff discloses the acts and conduct of the injured party immediately prior to or at the time in question. (See cases last cited and also Mundy v. Marshall, 8 Cal. (2d) 294 [65 P. (2d) 65]; Paulsen v. McDuffie, 4 Cal. (2d) 111 [47 P. (2d) 709]; Rogers v. Interstate Transit Co., 212 Cal. 36 [297 Pac. 884].) In the instant case the plaintiffs testified in regard to the events leading up to the collision. Plaintiff Matthew Speck, the driver, explained all of his actions. Under such circumstances there was no room for the presumption in this case. What was said in Rogers v. Interstate Transit Co., supra, is equally applicable here. It is there stated at page 38: “At the trial of this action plaintiff not only testified as to the circumstances of the collision between the car he was driving and the autostage of the defendant, but he produced witnesses who gave evidence, both direct and on cross-examination, of his acts and conduct just before and at the time of the collision. Whether the plaintiff took ordinary care of his own concerns while operating his car at that particular occasion was a matter of evidence established by the plaintiff and witnesses called by him in support of his claim that he did. In the face of this evidence there was no room for any presumption. If the evidence on his part showed that he was negligent, then it cannot be said that the jury, notwithstanding this evidence, might presume that he was not negligent, or that he took ordinary care of his own concerns, which amounts to the same thing. On the other hand, if this evidence showed that plaintiff was not negligent in the operation of his car at the time of its collision with defendant’s stage, then that fact was before the jury, not as the result of any presumption, but in response to testimony of witnesses testifying in the case. In either event, the jury, in determining whether the plaintiff was guilty of negligence, would look to and be governed by the evidence before the court, and not by any presumption.”- In view of the foregoing, the giving of the instruction complained of was error.

The question still remains whether the instruction was prejudicial under all the circumstances of this case. We are satisfied that it was not. There was considerable testimony on both sides on the question of contributory negligence, and, as previously stated, there was ample evidence to support the jury’s implied finding that the plaintiffs were not negligent. The instruction itself was qualified by the phrase “in the absence of evidence to the contrary.” Under it the jury was therefore free to accept the contrary evidence and to return a verdict thereon in favor of the defendants. Contributory negligence was fully and properly defined by the court, and the jury was instructed: “If you find from the evidence that plaintiffs were guilty of contributory negligence as defined in this instruction, however slight such contributory negligence on their part may have been, then you should return your verdict for the defendants, and each of them.” The jury was further instructed: “Plaintiffs were at all times called upon to exercise ordinary care for their own safety and, if they failed to do so, and such failure was a proximate cause of injury or damage to them, they cannot recover and your verdict must be against them and in favor of defendants.” The jury was also told: “Whether the parties did, or did not, use ordinary care is for you to determine from the facts testified to and, if you conclude from the evidence that plaintiffs did not use ordinary care and that their lack of ordinary care contributed proximately to their injury or damage then your verdict must be against the plaintiffs and in favor of defendants.” In consideration of the qualification in the instruction itself and in view of the other instructions quoted above, the defendants did not suffer any prejudice by the giving of the instruction. Under such circumstances the error is not prejudicial and does not warrant a reversal. [California Constitution, article VI, § 4½; Ellison v. Lang Transportation Co., supra; Tuttle v. Crawford, 8 Cal. (2d) 126 [63 P. (2d) 1128]; Rogers v. Interstate Transit Co., supra.]

Any asserted misconduct on the part of plaintiffs’ counsel in implying that defendants’ counsel was withholding photographs of the scene of the accident may not be said to have been prejudicial. The trial judge admonished the jury to disregard the statements. (Keena v. United Railroads, 197 Cal. 148, 163 [239 Pac. 1061]; House v. Pacific Greyhound Lines, 35 Cal. App. (2d) 336, 342 [95 P. (2d) 465]; Gerberich v. Southern California Edison Co., 26 Cal. App. (2d) 471, 476 [79 P. (2d) 783].) Nor did plaintiff Matthew Speck’s statement on the witness stand that defendant Philip Sarver had stated he was insured constitute prejudicial misconduct under the facts of this case. Speck’s statement was made incidentally during testimony as to a conversation which occurred between him and Sarver in which Sarver tended to admit fault. The statement was not made in response to any question by counsel attempting to inject the fact of defendants’ insurance into the case. The proper rule governing the reference to insurance in the instant case is found in Packard v. Moore, 9 Cal. (2d) 571, 580 [71 P. (2d) 922], wherein this court adopts the following statement from Hughs v. Quackenbush, 1 Cal. App. (2d) 349 [37 P. (2d) 99]: “While the courts have condemned repeatedly attempts to bring before the jury the fact that insurance exists, their condemnation extends only to eases where there is an ‘avowed purpose and successful attempt’ to bring the fact before the jury. It does not extend to eases where the information comes in, incidentally, in attempting to prove other facts, or where the record does not show that the particular answer was sought or anticipated.” (See, also, Hatfield v. Levy Brothers, 18 Cal. (2d) 798 [117 P. (2d) 841].)

The judgment is affirmed.

Shenk, J., and Carter, J., concurring.