Vasquez v. Alameda

SCHAUER, J.

Plaintiff appeals from an adverse judgment entered pursuant to a jury’s verdict in his action to recover for personal injuries suffered in a highway accident. We have concluded that plaintiff’s claims of error in the jury instructions are immaterial and need not be discussed because the uncontradicted evidence overwhelmingly supports the jury’s implied determination that plaintiff’s own conduct at the least constituted negligence which proximately contributed to his injuries. Hence, no miscarriage of justice is shown and the judgment should be affirmed.

At about 1 o ’clock on a March morning in 1954 plaintiff met one Vargas in a parking lot near the city of Santa Clara. On the parking lot was a Plymouth automobile owned by Vargas. The automobile was not in operable condition; its engine could not be started. Rain was falling at the time. Plaintiff, Vargas, and a third man joined in pushing the nonoperable automobile from its position of safety on the private property onto the highway, which at that point had three lanes, plus hard shoulders, and flat areas of dirt or gravel beyond the shoulders. The highway was straight for at least a half mile in each direction, and the posted speed limit was 45 miles an hour. The three men pushed the Plymouth, with its lights on, into the right hand, eastbound, lane of the highway where they allowed it to come to rest.

Plaintiff thereupon walked a short distance to the rear of the Plymouth and flagged down a car driven by defendant Green-ley. Greenley stopped in the center lane, to the left of the Plymouth, and then started to back into the right hand lane behind the Plymouth in order to push it. While backing Greenley saw a truck driven by defendant Rutkowski coming from behind on the outer shoulder. Afraid that the truck was so wide it could not clear vehicles or objects in the right hand lane, Greenley stopped his car partly in the center lane and partly in the lane to the right. Rutkowski, who had seen the two cars occupying the right hand and center lanes, had decided to pass them on the shoulder. As he passed the Plymouth he saw plaintiff standing behind it in the roadway to the right.

Defendant Alameda, driving in the same direction behind Rutkowski, saw red tail lights in the right hand lane ahead of him and other lights off to the right. He moved into the center lane to pass and did not see Greenley’s car, partly in that lane, until it was too late to stop. He struck the side of Greenley’s car, shoving it into the Plymouth, which was in turn moved forward by the impact. When Rutkowski heard the crash, he stopped his truck a short distance ahead of the Plymouth. Plaintiff testified that as he was standing on the shoulder next to the Plymouth after Greenley had started to back, he saw the lights of an approaching vehicle about 15 to 20 feet away in the right hand lane of the highway. The next thing he remembered was coming to his senses as he lay on his stomach with part of the left rear wheel of Rutkowski’s truck pressing on his left side and shoulder.

As grounds for reversal plaintiff complains of various asserted errors of the court in instructing the jury, and urges in particular that the plaintiff’s burden of proof was improperly and prejudicially overemphasized. However, the basic facts recited hereinabove make it altogether clear that plaintiff deliberately and actively participated in moving an inert object—Vargas’ nonoperable automobile—from a place of safety on private property to a place of danger on the public highway where it obviously constituted an obstruction to traffic. Whether, as has been suggested, plaintiff thereby aided and abetted in creating a public nuisance (see Civ. Code, §§ 3479, 3480; Pen. Code, § 370) we need not determine because, on any reasonable view of the evidence, the implied finding of the jury that his conduct was a proximate contributing cause of the accident which barred recovery, is amply supported.

If his conduct be regarded as creating a nuisance plaintiff’s liability to others for damages proximately caused by it would be, insofar as his own act is concerned, absolute (Stockton Automobile Co. v. Confer (1908), 154 Cal. 402, 405 [97 P. 881]; Curtis v. Kastner (1934), 220 Cal. 185, 188-191 [3, 4] [30 P.2d 26]; Calder v. City & County of San Francisco (1942), 50 Cal.App.2d 837, 839 [1] [123 P.2d 897]); i.e., anyone injured by plaintiff’s unlawful act could, unless barred by such other’s own contributory negligence, recover from plaintiff as from an insurer. It is, therefore, manifest that such plaintiff, if we take the view that he participated in creating a nuisance, may not recover against anyone for injuries, to the causation of which the nuisance proximately contributed, even though a defendant ’s negligence may have also contributed proximately to the accident. The result, of course, must be the same if plaintiff’s conduct be regarded as mere negligence which contributed proximately to cause the accident.

Considering the entire record we are satisfied that the jury’s implied finding—that plaintiff was at the least guilty of negligence which contributed proximately to cause his injuries-—is clearly and overwhelmingly supported. It follows that, even if we assume the errors urged by plaintiff, no miscarriage of justice is shown and a reversal is not permissible under the limitations of section 4½ of article VI of the California Constitution. (See People v. Watson (1956), 46 Cal.2d 818, 836 [299 P.2d 243]; Vallejo & Northern R. R. Co. v. Reed Orchard Co. (1915), 169 Cal. 545, 554 [147 P. 238].)

The judgment is affirmed.

Shenk, J., Spence, J., and McComb, J., concurred.