Parker v. Womack

CARTER, J.

I dissent. The instruction on -unavoidable accident should not have been given and the order granting a new trial should be affirmed on that ground.

The majority opinion states that, with relation to the evidence introduced in this ease, an instruction on unavoidable accident is not improper because “the defense of unavoidable accident has not been limited to cases where the defendant relies upon evidence of a proximate cause beyond his control”; that “an accident is inevitable or unavoidable when it is not proximately caused by negligence.” This argument proves too much. If an instruction on unavoidable accident does not add anything to instructions covering negligence, proximate cause, and the burden of proving those matters, there is no reason to give such an instruction (as pointed out in Barr v. Hall, 12 Cal.App.2d 489, at 492 [ 55 P.2d 1246 ]), and that instruction is improper at least where, as here, the jury is not clearly advised that the subjects covered by the other specific instructions are being repeated in a general and abstract manner. The definition included in the questioned instruction *124 —that the terms unavoidable or inevitable accident “simply denote an accident that occurred without having been proximately caused by negligence” — also shows that the instruction is not appropriate to this case. All the evidence here’tends to establish that the collision was proximately caused by negligence of one or both of the drivers. The effect of the instruction is to apparently inject into the case a third element not specifically connected with the questions of negligence and contributory negligence.

In Polk v. City of Los Angeles, 26 Cal.2d 519 [ 159 P.2d 931 ], and Jolley v. Clemens, 28 Cal.App.2d 55 [ 82 P.2d 51 ], the defendants questioned the propriety of instructions stating that the burden of proving that an accident was unavoidable rested upon the defendants and the statements in those cases concerning unavoidable accident were addressed to that question. Moreover, the statement that a finding of unavoidable accident merely means that the plaintiff has failed to prove his case, further illustrates that an instruction on that matter is wholly unnecessary and is confusing in cases such as the present one.

Hyman v. Market Street Ry. Co., 41 Cal.App.2d 647 [ 107 P.2d 485 ], is an analogous case in that the evidence therein indicated that negligence of one (or perhaps both) of the defendants proximately caused the accident. There the plaintiff, while a passenger on a streetcar owned and operated by one defendant, was injured by a collision with another streetcar owned and operated by the other defendant. It was held that the giving of an instruction on unavoidable accident was prejudicial error since there was no evidence of unavoidability. The majority opinion attempts to distinguish this case on the ground that “the evidence established the negligence of the defendant as a matter of law.” But it is apparent from the following statement of the facts that both defendants were not negligent as a matter of law: “The motorman of each ear testified that his car was at a complete stop when the other car ran into it. Passengers on each car corroborated the story of the motorman of their car.” ( 41 Cal.App.2d at p. 648 .) Had the doctrine announced in the majority opinion been adopted, it would have been held that the jury could have found that either of the defendants was free from fault and that therefore the accident was unavoidable as to such defendant.

In any event, we are not here concerned with whether or not the giving of the instruction would have required a reversal of *125 the judgment and the comments in. cases such as Pearce v. Elbe, 98 Cal.App. 101, 106 [ 276 P. 389 ], with respect to the likelihood of prejudice to a plaintiff from the instruction are not pertinent for the reason that the determination of that question is primarily for the trial court in passing upon a motion for a new trial. As stated in Mazzotta v. Los Angeles Ry. Corp., 25 Cal.2d 165, at 169 [ 153 P.2d 338 ]: “Upon an appeal from an order granting a new trial, all presumptions favor the order as against the verdict [citations] and the order will be affirmed if it may be sustained on any ground [citations] although the reviewing court might have ruled differently im, the first instance.” (Italics added.)

The opinion of the District Court of Appeal, Second Appellate District, prepared by Presiding Justice Shinn, correctly disposed of the issue presented on this appeal and I adopt that opinion, with some deletions, as follows [ 224 P.2d 25 ] :

“It is obvious that a finding that the collision was unavoidable would have had no support in the evidence. The only actors were the two drivers. No other car was involved, nor was the operation of either car impeded or influenced by any mechanical failure, obstruction, or extraneous force. If the accident could have been avoided by the exercise of ordinary care on the part of one driver or the other, or both, it was, of course, not unavoidable.

“An instruction on unavoidable accident is improper unless it is within the issues pleaded, and there is evidence of unavoidability. It is not enough that it be merely pleaded by a denial of negligence, or otherwise. In passing upon the sufficiency of the pleadings to warrant an instruction on unavoidable accident, it has sometimes been overlooked that there must also be supporting evidence.

“In the following cases it was held proper to instruct on unavoidable accident under defendant’s denial of negligence, without considering whether there was evidence that would have supported a finding that the accident was unavoidable. (Pearce v. Elbe, 98 Cal.App. 101 [ 276 P. 389 ]; Sitkei v. Ralphs Grocery Co., 25 Cal.App.2d 294 [ 77 P.2d 311 ]; Schubkegel v. Dunn, 31 Cal.App.2d 312 [87 P.2d 875]; Stevenson v. Fleming, 47 Cal.App.2d 225 [ 117 P.2d 717 ]; Martindale v. Atchison, T. & S. F. Ry. Co., 89 Cal.App.2d 400 [ 201 P.2d 48 ].)

*126 “In the following eases the instruction was held proper where there was evidence that the accident was unavoidable. (Graham v. Consolidated M. T. Co., 112 Cal.App. 648 [ 297 P. 617 ] (child ran into street); Creamer v. Cerrato, 1 Cal.App.2d 441 [ 36 P.2d 1094 ] (same); Jolley v. Clemens, 28 Cal.App.2d 55 [ 82 P.2d 51 ] (horse suddenly appeared on highway); Zaferis v. Bradley, 28 Cal.App.2d 188 [ 82 P.2d 70 ] (driver’s foot became wedged between pedals); Smith v. Harger, 84 Cal.App.2d 361 [ 191 P.2d 25 ] (small boy pushing on back of dump truck); Merry v. Knudsen Creamery Co., 94 Cal.App.2d 715 [ 211 P.2d 905 ] (brake failure).)

“In Jacques v. Southern Pac. Co., 8 Cal.App.2d 738 [ 48 P.2d 63 ], Barr v. Hall, 12 Cal.App.2d 489, 492 [ 55 P.2d 1246 ], and D’Avanzo v. Manno, 16 Cal.App.2d 346 [ 60 P.2d 524 ], it was held proper to refuse the instruction where there was no evidence that would have supported a finding of unavoidable accident. In Jacques v. Southern Pac. Co., supra, the court said (p. 741) : ‘There was no evidence upon which this instruction could be based. All the evidence tended to support the respective theories of the two parties — one, that the accident was due to the careless and negligent operation of the train, the other, that it was due to respondent’s negligence in running in front of the moving train. The evidence all tended to prove the respective theories — that the accident was not unavoidable but that it could have been avoided by the other party.’ This statement fits our case precisely. . . .

“In the present ease, the instruction not only tended to divert the minds of the jurors from the decisive issues of negligence and contributory negligence, but suggested that under the evidence the defendants might be held blameless for some reason other than their freedom from negligence or contributory negligence on the part of plaintiff. In view of the evidence we have stated we can conceive of no theory under .which the accident could have been found to be unavoidable, unless it be that collisions at intersections, where the views of the drivers are obstructed, are bound to occur, and therefore may be deemed unavoidable. This would be a highly unreasonable theory, but appellants have suggested no better one. They say: ‘From the evidence adduced, the jury could have found that defendant Womack exercised reasonable care in the control of his automobile, ’ and also, ‘accepting plaintiff’s version, it might well be, that a jury could conclude her conduct was not negligent. ’ Without comment on these statements, we add that the jury could not *127 reasonably have found both parties to have been free from negligence. Appellants’ analysis of the evidence and their arguments tend to emphasize the fact that the accident was not unavoidable.

“Where a new trial is granted for the reason that an erroneous instruction was prejudicial to the rights of the moving party, the order will not be reversed unless it can be said that the ruling was an abuse of discretion. (Nance v. Fresno City Lines, Inc., 44 Cal.App.2d 868 [ 113 P.2d 244 ]; Middleton v. California St. Calle Ry. Co., 73 Cal.App.2d 641 [ 167 P.2d 239 ]; Mazzotta v. Los Angeles Ry. Corp., 25 Cal.2d 165 [ 153 P.2d 338 ]; Brown v. George Pepperdine Foundation, 23 Cal.2d 256 [ 143 P.2d 929 ]; Copley v. Putter, 93 Cal.App.2d 453 [ 207 P.2d 876 ]; Jones v. Scurlock, 96 Cal.App.2d 201 [ 214 P.2d 599 ].) The order granting a new trial was not an abuse of discretion, but, upon the contrary, was a proper one for the court to make.”

For the reasons stated I would a£6rm the order granting a new trial.

Shenk, J., concurred.