# Stickel v. San Diego Electric Railway Co.

> California Supreme Court · July 1, 1948 · 32 Cal. 2d 157

URL: https://www.frixlaw.com/law-library/cases/9583263

## Case

- **Full name:** HARRIS STICKEL, Respondent, v. SAN DIEGO ELECTRIC RAILWAY COMPANY (A Corporation) Et Al., Appellants
- **Court:** California Supreme Court
- **Decided:** July 1, 1948
- **Citations:** 32 Cal. 2d 157; 195 P.2d 416; 1948 Cal. LEXIS 210
- **Precedential status:** Published
- **Opinion:** Dissent by Traynor
- **Judges:** Traynor
- **Cited by:** 51 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9583263

## Opinion text

TRAYNOR, J.
I dissent.
In my opinion the verdict is not supported by the evidence. The bus driver proceeding on a through highway had the right to assume that Mrs. Stickel would yield the right of way. (Veh. Code, § 552; Ambra v. Woolsey, 55 Cal.App.2d 104, 106 [130 P.2d 152 ]; Zwerin v. Riverside Cement Co., 52 Cal.App2d 715, 718-719 [ 126 P.2d 920 ]; Gritsch v. Pickwick Stages System, 131 Cal.App. 774, 780 [ 22 P.2d 554 ]; Inouye v. McCall, 35 Cal.App.2d 634, 638 [ 96 P.2d 386 ]; Silva v. Market Street Ry. Co., 50 Cal.App.2d 796, 800 [ 123 P.2d 904 ]; see Lindenbaum v. Barbour, 213 Cal. 277, 285-286 [ 2 P.2d 161 ]). I find nothing in the evidence from which an inference could be drawn that the bus was not so close *171 to the intersection as to constitute an immediate hazard and therefore cannot agree that Mrs. Stickel could reasonably believe that there was not such a hazard.
Even if it is assumed that the jury could determine that the bus driver was negligent when he entered the intersection, Mrs. Stickel was guilty of contributory negligence as a matter of law, if she was under the influence of intoxicating liquor while driving the truck, and the trial court’s refusal to give defendants’ instruction to that effect was prejudicial error.
Defendants called several witnesses, who testified that Mr. and Mrs. Stickel were intoxicated on the evening of the collision, which occurred at about 10:40 p. m. Harry Walker testified that he was on duty as bartender at the Last Eoundup Cafe at Encanto on that evening; that the Stickels entered the bar sometime between 9 and 10 p. m.; that they came directly to the bar and asked for a drink; that Mrs. Stickel “was hilarious and in a happy frame of mind and a little bit on the staggering side”; that he therefore refused to serve her liquor and instructed the waitresses not to serve her; that Mrs. Stickel said “she would get a drink anyway” and mingled with other customers; and that the Stickels left the bar 20 or 30 minutes after their arrival. Leon Cesmat testified that he was employed at the Last Eoundup Cafe and that his duties included keeping order in the cafe; that on the night of the accident between 9 and 10 p. m. he saw Mrs. Stickel in the cafe talking to two sailors; that Mrs. Stickel was “pretty well intoxicated” and that he ordered her out upon instructions of the proprietress. Sandra Slayton testified that she was part owner and manager of the Last Eoundup Cafe; that on the night of the accident she saw the Stickels at the cafe shortly before 10 p. m.; that Mrs. Stickel was intoxicated; that Mr. Stickel’s condition “wasn’t so bad”; that Mrs. Stickel “was walking from table to table picking up drinks and drinking them”; that Mrs. Stickel did not leave the cafe when the witness asked-her to and that she therefore asked the doorman to make her leave. George F. Evans testified that he went with an ambulance to the scene of the accident in line of duty as a police officer; that there was a slight odor of alcohol at the scene of the accident, and a more noticeable one in the ambulance; and that he smelled alcohol on Mrs. Stickel’s breath. Harry Kemp, another police officer, testified that he drove the ambulance to the hospital while Evans sat in the back with the Stickels; that he helped *172 carry them out of the ambulance and at that time smelled alcohol on both of them.
The trial court refused to give the following instruction requested by defendants:
“Section 501 of the Vehicle Code of the State of California in force and effect at the time of the accident reads, in part, as follows: ‘Any person who, while under the influence of intoxicating liquor, drives a vehicle and when so driving does any act forbidden by law or neglets any duty imposed by law in the driving of such vehicle, which act or neglect proximately causes bodily injury to any person, is guilty of a felony . . .’ Section 502 of the Vehicle Code of the State of California in force and effect at the time of the accident reads, in part, as follows: ‘It is unlawful for any person who is under the influence of intoxicating liquor to drive a vehicle upon any highway.’ If you should find from the evidence that the decedent, Essie Stickel, conducted herself in violation of Section 501 or 502 of the Vehicle Code of the State of California, just read to you, you are instructed that such conduct constituted negligence as a matter of law, and if you further find that such violation of laiv by Essie Stickel contributed in some degree as a proximate cause to the accident, the plaintiffs cannot recover and your verdict must be for the defendants. ’ ’ *
The majority opinion holds that the failure to give this instruction could not have prejudiced defendants, on the grounds that the jury were adequately instructed in general terms as to negligence, contributory negligence, and proximate cause, and that they impliedly found that Mrs. Stickel was not legally responsible for causing the collision. “To assume that they did not consider the question of Mrs. Stickel’s asserted intoxication under these general instructions would be to attribute to the jury a lack of ordinary intelligence or deliberate violation of duty.”
Although the jury may have considered the question of Mrs. Stickel’s alleged intoxication, they were not instructed as to the legal effect of such intoxication on her responsibility for the accident. The general instructions left them free to formu *173 late their own standard of conduct and to approve conduct that the Legislature has declared so hazardous as to call for criminal punishment. They were bound to conclude from these instructions that Mrs. Stickel’s alleged intoxication was only one circumstance to be considered in determining whether her conduct contributed to the injuries complained of. In the absence of a statute like section 502 such instructions might have been adequate. (Coakley v. Ajuria, 209 Cal. 745, 752 [ 290 P. 33 ]; Emery v. Los Angeles Ry. Co., 61 Cal.App.2d 455, 461 [ 143 P.2d 112 ]; see 4 Sherman & Redfield on Negligence (rev. ed.), § 700.) Section 502, however, prohibits persons from engaging in the ultrahazardous activity of driving a motor vehicle on a highway while under the influence of intoxicating liquor, thereby setting a statutory standard of conduct. If that standard is applicable, a violation thereof constitutes negligence as a matter of law. “An act or failure to act below the statutory standard is negligence per se, or negligence as a matter of law.” (Satterlee v. Orange Glenn School District, † 29 Cal.2d 581, 588 [ 177 P.2d 279 ], and cases there cited.) In determining whether the statutory standard is applicable, the court must determine whether the persons injured were within a class that the statute was designed to protect, and whether the injury arose from a hazard of the kind the statute was designed to guard against. (De Haen v. Rockwood Sprinkler Co., 258 N.Y. 350 [ 179 N.E. 764 ]; Restatement, Torts, § 286; Prosser, Torts, 269.)
Mr. and Mrs. Stickel as users of the highway were clearly within the class of persons for whose protection section 502 of the Vehicle Code was enacted. It is likewise clear that their injuries arose from a type of hazard against which the statute is directed. In Johnston v. Brewer, 40 Cal.App.2d 583, 587 [ 105 P.2d 365 ], it was held that the jury was correctly instructed that a pedestrian, who was struck by an automobile, “was guilty of negligence as a matter of law” in being on a street or highway while intoxicated in violation of a municipal ordinance. “It is common knowledge that one whose senses have been dulled by intoxicants is unable to control his bodily movements in a normal manner and as a result the presence *174 of such persons upon the public streets and highways is dangerous not only to themselves but to others who are lawfully using the streets and highways. It is evident that the ordinance was enacted in the interests of the general welfare for the dual purpose of protecting intoxicated persons from the results of their own folly and of protecting the general public from the dangers and other evils attendant upon the presence of such persons upon the streets and highways ...” Certainly the statute involved in this case has the same purpose, for the dangers attendant upon the presence of an intoxicated person on a highway, particularly at an intersection, are multiplied if he is operating a motor vehicle. (Packard v. O'Neil, 45 Idaho 427 [ 262 P. 881 , 56 A.L.R. 317 ]; Wise v. Schneider, 205 Ala. 537 [ 88 So. 662 ]; Lincoln Taxicab Co. v. Smith, 88 Misc. 9 [ 150 N.Y.S. 86 ].)
Section 502, however, does not deprive an intoxicated driver of all protection against the wrongful act of another. If the disabilities of the driver arising from intoxication, such as impairment of his percepton and his reactions to the dangers of the road, did not expose him to a foreseeable risk of injury through such a wrongful act, section 502 does not govern his civil responsibilities. Certainly in the present ease, if Mrs. Stiekel was intoxicated, the consequent impairment of her driving ability exposed her to a foreseeable risk of injury through the negligence of defendants’ bus driver. It cannot reasonably be said that the possibility that other vehicles approaching on the through highway would negligently enter the intersection was so remote that it could not be regarded as part of the risk. Anyone operating a motor vehicle on a highway must realize that he cannot drive blindly into an intersection in the confidence that other vehicles will yield the right of way. (Donat v. Dillon, 192 Cal. 426, 429 [ 221 P. 193 ]; see Prosser, Torts, 245 and cases there cited.) Clearly, if Mrs. Stiekel was intoxicated, her belief as to the chances she could take cannot serve to justify her conduct. Whatever the extent of the right of a driver of a motor vehicle to assume that others will use due care, an intoxicated driver, who has impaired his ability to appreciate the dangers of the road, particularly of an intersection, is engaged in an ultrahazardous activity that necessarily involves a risk of serious harm to himself as well as well as to others. A motor vehicle operated by an intoxicated person is an instrument of death and destruction, and it is a matter of chance when or whether an accident will occur and to whom, and how serious it will be. *175 Even if momentarily the operator’s reactions are those of a sober person, he is likely to revert to the erratic reactions of those who are not. His momentary seizure of sober behaviour may in itself be erratic and is certainly dangerous in lulling others into believing that he has full possession of his senses. Conduct involving undue risk of harm to one’s self as well as to others, including conduct prohibited by statute, constitutes contributory negligence. (Meincke v. Oakland Garage, Inc., 11 Cal.2d 255, 256 [ 79 P.2d 91 ]; Koeppel v. Daluiso, 118 Cal.App. 442, 446 [ 5 P.2d 457 ]; see Restatement, Torts, §§ 469, 475.)
It is contended, however, that the judgment must be affirmed on the ground that the jury has impliedly found that Mrs. Stickel was not legally responsible for causing the collision, in other words, that her conduct was not a “proximate” cause thereof. This contention may mean (1) that Mrs. Stickel’s conduct was not in fact a cause of the collision, or (2) that the harm therefrom does not fall within the limits of her legal responsibility for the consequences of her conduct. That her driving the truck into the intersection was a substantial factor in bringing about the collision and therefore in fact contributed to the accident there can be no doubt. (See Restatement, Torts, § 431.) With that determined, the question of causation is settled. It remains only to determine whether the injury falls within the limits of her responsibility for the consequences of her conduct. (See Prosser, Torts, pp. 311-313.) In my opinion, that determination is made once it is established that her conduct was wrongful with respect to her own safety and that of others on the highway; for the risk reasonably to be foreseen not only creates the responsibility but defines its limits. (See concurring opinion in Mosley v. Arden Farms Co., 26 Cal.2d 213, 220 [ 157 P.2d 372 , 158 A.L.R. 872 ], and authorities there cited.) A decision, therefore, that Mrs. Stickel was not legally responsible for causing the collision or that her conduct was not the proximate cause thereof means only that she was not negligent. If she was driving while intoxicated, she was guilty of negligence as a matter of law, and the jury should have been so instructed.
Appellants’ petition for a rehearing was denied July 29, 1948, and opinion was modified to read as above. Traynor, J., voted for a rehearing.
Section 501 is violated by anyone who engages in negligent conduct in addition to driving a motor vehicle while under the influence of intoxicating liquor, but such driving is in itself a volation of section 502. Reference to section 501 was therefore superfluous, but it was not erroneous. If the jury had found that Mrs. Stickel violated section 502, they would necessarily have determined that plaintiffs could not recover, and it would be immaterial whether she also violated section 501.
The holding in the majority opinion in that ease that the jury can determine from the evidence whether deviation from a statutory standard is excused by the extraordinary circumstances of a particular case is not involved in the present case. There is no evidence of any justification for Mrs. StiekeVs driving the automobile while under the influence of intoxicating liquor.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9583263. Public record. Not legal advice.