Cucinella v. Weston Biscuit Co.

CARTER, J.

I dissent.

I am of the opinion that it was prejudicial error to admit evidence of the “average speed” traveled by vehicles in the area of the accident in view of the testimony showing that the area in question was posted with 25-mile-an-hour speed limit signs. It has been held numerous times by this court and by appellate courts of this state that the question of negligence, or lack of negligence, is not to be determined by what others did or did not do at the time and place under the particular facts and circumstances then and there confronting them, including the important and undisputed factor here that there was a pedestrian in the street. In Rudd v. Byrnes, 156 Cal. 636, 642 [ 105 P. 957 , 20 Ann.Cas. 124, 26 L.R.A.N.S. 134 ], it was held that “The standard of care required of persons under given circumstances is not to be established by proof that others have been in the habit of acting in a certain manner.” In Phoenix Assur. Co. v. Texas Holding Co., 81 Cal.App. 61, 74-75 [ 252 P. 1082 ], it was held “That a mere custom or usage cannot make due care out of conduct that is in fact negligence under the circumstances disclosed by the evidence has been stated a number of times by the courts of this state, as well as of other states. . . . the specific practice of others cannot be admitted in testimony as an excuse for the alleged negligent act of the defendant. ’ ’ And in Robinet v. Hawks, 200 Cal. 265, 274 [ 252 P. 1045 ], it was held that “. . . the doctrine of customary usage does not, to our knowledge, apply to the question of legal duty under the law of negligence. In Perry v. Angelus Hospital Assn., 172 Cal: 311, 315 [ 156 Pac. 449 ], we say: ‘We know of no authority for the proposition that by continuing in a careless performance of duty a party transforms its negligence into due care. (Silviera v. Iverson, 125 Cal. 266 [ 57 Pac. 996 ].)’ ” In Sheward v. Virtue, 20 Cal.2d 410, 414 [ 126 P.2d 345 ], it was held: “Assuming that other manufacturers likewise made no special examination to discover fractures such a custom would *84 not excuse the failure of these appellants. A somewhat similar contention was rejected in the case of Hughes v. Warman Steel Casting Co., 174 Cal. 556, 561 [ 163 Pac. 885 ]. In Robinet v. Hawks, 200 Cal. 265, 274 [ 252 Pac. 1045 ], this court said that the doctrine of customary usage does not apply to the question of legal duty under the law of negligence, or that the continuance of a careless performance of a duty would transform a party’s negligence into due care.” In People v. Crossan, 87 Cal.App. 5, 16 [ 261 P. 531 ], it was held that “ ‘The standard of care required of persons under given circumstances is not to be established by proof that others have been in the habit of acting in a certain manner. ’ ” See, also, Wolfsen v. Wheeler, 130 Cal.App. 475, 482-484 [ 19 P.2d 1004 ]; Carroll v. Central Counties Gas Co., 96 Cal.App. 161, 165-166 [ 273 P. 875 ],

Fowler v. Key System Transit Lines, 37 Cal.2d 65, 68 [ 230 P.2d 339 ], relied upon by a majority of this court to support the determination that evidence of custom was properly admitted in the ease at bar, involved an entirely different situation. There, the court, citing Adamson v. San Francisco, 66 Cal.App. 256 [ 225 P. 875 ], said: “Where ... a usual practice or custom has obtained, and . . . the claim, is made that one of the parties has, to the discomfiture of the other, without notice, departed from the usual custom or practice, [emphasis added] the courts have by an unbroken line of decisions held that the question of negligence on the part of the defendant, and the question of contributory negligence on the part of the plaintiff, are both questions for the jury to determine in the light of all of the facts, including the evidence tending to establish the alleged deviation therefrom.” In the Fowler case, it had been alleged that the passenger had been injured while stepping from a bus which had not stopped at its customary stopping place. In Ross v. San Francisco-Oakland T. R. Co., 47 Cal.App. 753, 766 [ 191 P. 703 ], relied on in the Fowler case, the court said: “The settled practice of stopping a street-car at a particular place becomes a rule of conduct upon which the public has a right to rely to a reasonable extent, and a departure from such rule is a vitally important element in determining the question of negligence, for it constitutes a departure from the standard of safety which the defendant itself has adopted. ’ ’ The majority here rely upon Muir v. Cheney Bros., 64 Cal.App.2d 55 [ 148 P.2d 138 ], as it was cited in the Fowler case. The Muir case also involved a deviation from the normal method of travel on a *85 certain portion of highway which was “difficult of description.” The evidence was offered to show the method in which most vehicles negotiated a turn on an intersection in the shape of an arc. It was offered to show the jury the full set of circumstances surrounding the accident in question.

In support of the rule stated in the Muir ease, and restated by the majority here, several cases are cited but none of them is in point. For example, in Hatzakorzian v. RuckerFuller Desk Co., 197 Cal. 82 [ 239 P. 709 , 41 A.L.R 1027], a pedestrian was struck by an automobile driven by an employee of the defendant. The defendant alleged that the deceased met his death through his own contributory negligence. No custom was involved. Testimony regarding statements made by the deceased prior to his death were held admissible so as to disclose “that the deceased had in his mind and fully realized, as he was walking along or over the highway just before he was struck, the perils or dangers of walking over the highway in the darkness of night, and further tended to show that, while thus engaged, he was exercising due care for his own safety.” Another case is that of Dewees v. Kuntz, 130 Cal.App. 620 [ 20 P.2d 733 ], where no evidence of custom was involved. The court there, in explaining the general rules governing the care to be used by the driver of an automobile summarized, in part, by saying: “In some cases the evidence may justify a conclusion that he had actual knowledge of the danger of collision; in others it may be concluded from the attendant circumstances that the defendant was advised of the peril, but in a less degree. If it appears that the defendant omitted to take a precautionary measure which was prescribed by law or usage, the imputation is that he must have had knowledge of the danger.” In Mace v. Watanabe, 31 Cal.App.2d 321 [ 87 P.2d 893 ], the trial court, over objection, permitted a traffic officer to testify that it was the general custom and habit of motorists to travel the roadway along each leg of the “Y” rather than to use the soft gravel forming the “V” of an intersection. This was offered to show that each leg of the “Y” constituted a well-traveled roadway and that the “V” did not constitute such a roadway. It was there said that there was no error in the admission of such testimony since “This evidence was not like that offered in Hurtel v. Albert Cohn, Inc., 5 Cal. (2d) 145 [ 52 Pac. (2d) 922 ], to show the habit of pedestrians to violate traffic signals maintained for their protection. . . . The evidence .showed that the county had constructed and maintained *86 these two separate approaches, and the further evidence that they were commonly used as such by all motor traffic was material to respondents’ case.” In Scott v. Gallot, 59 Cal. App.2d 421, 426 [ 138 P.2d 685 ], it was held that evidence of custom which was' a safety measure was admissible because it was not evidence of a custom which was negligent.

Here the evidence of custom showed negligence—that of exceeding the posted speed limit in the area and that evidence could only have been considered by the jury to excuse any negligence on the part of the defendant.

The law is well settled that mere custom or usage cannot make due care out of conduct that is in fact negligence under circumstances disclosed by the evidence (Phoenix Assur. Co. v. Texas Holding Co., supra, 81 Cal.App. 61 ; Rudd v. Byrnes, supra, 156 Cal. 636 ; Anstead v. Pacific Gas & Elec. Co., 203 Cal. 634 [ 265 P. 487 ] ; Perry v. Angelus Hospital Assn., 172 Cal. 311 [ 156 P. 449 ]; Robinet v. Hawks, supra, 200 Cal. 265 ; Carroll v. Central Counties Gas Co., supra, 96 Cal.App. 161 ; Mehollin v. Ysuchiyama, 11 Cal.2d 53 [ 77 P.2d 855 ]; Sheward v. Virtue, supra, 20 Cal.2d 410 ] ; People v. Crossan, supra, 87 Cal.App. 5 ; Wolfsen v. Wheeler, supra, 130 Cal. App. 475; Sanford v. Moreau, 249 App.Div. 915 [ 292 N.Y. Supp. 595 ]; 61 C.J.S. 271).

Plaintiffs’ offer of proof that plaintiff wife knew of a custom of crossing San Fernando Road at the point of the accident was refused by the trial court. The offer of proof consisted of this: “If this witness were allowed to answer, she will testify that she had been crossing in this same crosswalk area since she first became employed there in 1945, and when she first came to work there were white lines painted across the pavement of San Fernando Road; that there have always been these metal- There have always been metal strips across the road; that she, even in company with many other employees and patrons of the Riverview Laundry had crossed there; that she had seen many, many persons cross in that particular area right up to the time of the accident, and she herself as I say, has crossed there to take the streetcar, as she was doing this morning. ’ ’ While the offer of proof was somewhat inartistieally phrased, the meaning is clear. Plaintiffs sought to prove that the particular crossing space had formerly been a marked crosswalk and that since the San Fernando Road had been resurfaced and the white lines obliterated, it had by reason of custom become an unmarked crosswalk. We find in the record that one of defendants” *87 instructions told the jury in a negative manner that if a pedestrian 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. Stated affirmatively, the law requires a motorist to yield the right of way to a pedestrian crossing within a marked or unmarked crosswalk. Section 560(a) of the Vehicle Code provides:1 ‘ The driver of a vehicle shall yield the right of way to a pedestrian crossing the roadway within any marked crosswalk or within any unmarked crosswalk at an intersection, except as otherwise provided in this chapter.” Had the evidence been admitted, the jury would have been properly instructed since the instruction as given was substantially in the language of the section. Without the evidence, the instruction was meaningless and pointless. The evidence would have shown that by custom the point in question was an unmarked crosswalk giving plaintiff wife the right of way. Such evidence was not only admissible but material to plaintiffs’ case. Its exclusion was clearly prejudicial.

I am also of the opinion that the failure to give plaintiffs’ instruction 201-E constituted prejudicial error. It is admitted in the majority opinion that the requested instruction correctly states the law; that its subject matter was not covered by other instructions and that it should have been given. In the majority opinion, it is then pointed out that the trial court also failed to give plaintiffs’ instruction No. 102-A. No. 201-E would have told the jury that “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 amount 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 *88 apparent to Mm in the conditions at hand, or that would be apparent to a person of ordinary prudence in the same position.” Plaintiffs’ instruction No. 102-A would have told the jury that "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 reqmred by law increases as does the danger that reasonably should be apprehended.” Numerous cases are cited in the majority opinion to the effect that instruction No. 201-E is a correct statement of the law. For some peculiar reason, best known only to a majority of this court, defendant’s instruction 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” is quoted. It is then admitted that there has been a "seeming” emphasis placed bn the duties of a pedestrian and that "it is our view” that the court might well have given plaintiffs’ requested No. 102-A "as well as No. 201-E.” But despite these admissions of error and "seeming” favoritism to the defense, it is concluded that no prejudice was suffered by plaintiffs. Or, at least, not enough error to constitute a miscarriage of justice because a different verdict "would have been improbable.” I say that a different verdict would have been most probable had these errors not occurred.

In failing to give plaintiffs’ two requested instructions and in giving those requested by defendant, the trial court weighted the scales in favor of the defendant by placing a greater burden of care on a pedestrian than that which the law imposes and relieved the motorist of the responsibility which has been imposed on him. We are told in the majority opinion, that "Although, as mentioned, some of the instructions hereinabove quoted appear to emphasize the duties of a pedestrian who essays to cross a thoroughfare at a point other than an intersection or marked crosswalk, such emphasis is at most a relative matter and is something the appearance of which cannot always be avoided. The emphasis comes not *89 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(Emphasis added.) There was no necessity of singling out the pedestrian. Had plaintiffs’ requested instructions been given, a fair trial would have been more likely. Had the instructions been given (and it must be remembered that concededly they correctly stated the law and should have been given) the other errors complained of would not have been nearly so pernicious. Under the facts of this case, it may readily be seen that, first, in admitting evidence of a so-called custom of evading the law and exceeding the speed limit (with which practice plaintiff wife was supposedly familiar) the jury were, in effect, told that plaintiff wife was pretty stupid in crossing at that particular point where all cars were going too fast. In the refusal to give her instructions, confusion was compounded by placing a greater duty of care on her, as a pedestrian, than on the one driving a mechanical contrivance capable of inflicting great bodily injury. These two errors, added to the refusal to admit plaintiffs’ evidence of a custom of all pedestrians to cross at an unmarked crosswalk (which had been previously a marked crosswalk and which was to be, again, a marked crosswalk) could have had but one result: that of impressing upon the jury that plaintiff wife had a tremendous duty of care for her own person in crossing a highway upon which cars were known to exceed the speed limit and that in failing to take all these things into consideration she was guilty of contributory negligence which proximately caused her injuries. We are told that instructions which “seemed” to emphasize the duties of the operator of a motor vehicle were given “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 m 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 a/nd that the respectively ensuing potentialities of harm and devolving re *90 sponsibilities vary accordingly.” (Emphasis added.) Error is admitted; the instructions should have been given; so prejudice resulted. It is elemental that the jury determines the facts and renders its verdict under the proper principles of law. How is a body, composed of laymen untrained in the law, to make a correct determination and come to the right conclusion when it has not been fully and fairly instructed as to the proper principles of law? The majority of this court, whose signatures appear there, would be the first to cry with horror that a jury must not be allowed, unaided by instructions on the applicable law, to decide which one of two opposing parties was guilty of either negligence or contributory negligence. In fact, normally, juries are considered so unreliable in their factual determinations that a majority of this court would substitute itself for those august bodies and take even the most minute factual determination upon itself. Yet here, a jury is permitted to make a determination (and a majority of this court affirms that determination) unaided by the proper instructions. The result achieved in this case brings home the truth of the saying that “there ought to be a closed season on us pedestrians”!

The 'discussion in the majority opinion as to the nonprejudicial character of the errors committed by the trial court in this case is meaningless. Some errors are conceded. The prejudicial character of any error is purely a matter of opinion. While the majority does not hold that it was error to admit evidence of custom as to the speed of automobiles at the place where the accident occurred or exclude the testimony offered by plaintiff relative to the custom of pedestrians to cross the street at that point it is conceded that the jury was erroneously instructed relative to the respective duties and responsibilities of pedestrians and operators of motor vehicles. From my examination of the record in this case I do not believe it can fairly and honestly be said that if the errors in question had not been committed a different result would have been improbable. On the other hand, I think it highly improbable that the same result would be obtained upon a new trial free from the errors here shown. For this reason I believe the errors were prejudicial, and I would therefore reverse the judgment and direct that a new trial be had.