Dwelly v. McReynolds

California Supreme Court Apr 18, 1936 No. S. F. 15522Published

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Holding. The court held that accident statements not made on official forms or filed as required by the California Vehicle Act are not privileged and are admissible as evidence. Furthermore, the court held that the flagman's failure to warn the plaintiff of a known danger was a proximate cause of the accident and that the issue of the plaintiff's contributory negligence was a question of fact for the jury.

Issues

Whether statements made to highway patrol officers regarding an accident are privileged and inadmissible under section 142 of the California Vehicle Act.
Whether a flagman owed a duty to warn a motorist of a specific danger known to the flagman but not to the motorist.
Whether the plaintiff was contributorily negligent as a matter of law.
Whether the jury's damage award was excessive.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Since, as the trial court correctly stated, the statements were neither made by appellants on the requisite forms, nor filed nor used as provided by the section, they were not privileged but were admissible.”

“No duty rested on Arrowsmith to warn respondent of a danger equally known to him.”

“Contributory negligence is a question of law only when the court is impelled to say that from the facts reasonable men can draw but one inference and that an inference pointing unerringly to the negligence of the plaintiff”

THE COURT.

Further consideration of the merits of the appeals herein has led us to arrive at the same conclusions reached by the District Court of Appeal, First Appellate District, Division One, and we adopt as the opinion of this court the opinion of that court prepared by Mr. Justice Gray,

pro tern.

It is as follows:

“On the night of the accident, respondent Vernon E. Dwelly, as a state traffic officer, was patrolling, on his motorcycle, the state highway between San Rafael and Sausalito, in Marin county. The portion of this highway between Sausalito and Waldo was being reconditioned by appellant Peninsula Paving Co. under a state contract. In such work, dirt was hauled southerly from a steam shovel, westerly of the highway, to a fill, easterly of the highway, by trucks, which were rented, with drivers, by appellant 0. McReynolds, to the company. To control traffic, the company stationed a flagman at each end of the portion of the highway over which the trucks moved. Immediately before the accident respondent had stopped on signal of the northerly flagman, appellant Lloyd E. Arrowsmith, and, after proceeding southerly about 125 feet, collided with one of such trucks, operated by appellant G. R. Bur gin, when it, in going to the steam shovel, made a sharp left turn from the. easterly side of that highway across respondent’s course. For the resultant injuries respondent sued all four appellants and was awarded by a jury damages against all in the sum of $17,500. ■ The paving company and its flagman, jointly, and the truck owner and its driver, jointly, have separately appealed from the judgment, entered in accordance with the verdict.

“ Over such appellants’ separate objections that they were privileged and confidential communications under section 142 of the California Vehicle Act, respondent was permitted to read into evidence, statements as to the accident, made by appellants Arrowsmith and Bur gin, and to cross-examine each as to his statement. Th§ pertinent part of this section reads as follows: 1 The driver of any vehicle involved in any accident resulting in injuries ... to any person, shall within twenty-four hours forward or file or cause to be filed a report of such accident to the division, or any of its branch

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Dwelly v. McReynolds

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THE COURT.

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