Yockel v. Hatley

SHINN, P. J.

This is an action for damages resulting from injuries received when an automobile driven by plaintiff Lewis, in which plaintiff Yockel was a passenger, collided with a car belonging to defendant Kantor, also krlown as Zatulovsky, and driven by defendant Hatley. The collision occurred when the car of the defendants veered into and stopped in the lane in which plaintiffs’ car was traveling on the Hollywood Freeway. In a jury trial, verdict and judgment were for defendants and plaintiffs appeal.

At the request of the defendants the court gave an instruction on unavoidable accident. This error constitutes the sole ground of the appeal. Defendants say: “The giving of the complained-of instruction on unavoidable accident was proper and correct. The instruction did not mislead the jury; it did not confuse the jury; and there was no prejudicial error in the case. ” If we could agree we wouldi have to affirm the judgment; but we cannot agree.

[3]

It is error to give the instruction except in exceptional circumstances which do not exist in the present case.

(Butigan

v.

Yellow Cab Co.,

49 Cal.2d 652 [320 P.2d 500].) As in all other eases where error has been committed the question of prejudice must be examined in the light of the special facts of the ease, and in accident eases these are of infinite variety.

Mrs. Hatley, 40 years of age, was housekeeper for the Kantors in Hollywood. She was driving their Cadillac westerly from downtown Los Angeles to Hollywood. We shall first give Mrs. Hatley’s account of the accident. There were four lanes for westbound traffic, numbered from the middle of the freeway. She was in lane 3; as she approached the Glendale Boulevard turnoff, a ramp, a Chevrolet which was in lane 4, started to turn off and then came back into lane 3; Mrs. Hatley turned left, put on brakes, swerved into lane 2 and came to a stop; her car was stopped when it was struck by the Lewis ear; she had been stopped for some period of time, it seemed to her like two minutes or something like that before the collision; she was looking toward the east and saw the Lewis car approaching and thought it would stop; if she had turned her ear to the right the Lewis ear would have hit her car in the rear; as it was, it struck the front fender and wheel. She thought the Lewis car was going 40 or 50; she was not injured. The Cadillac had power brakes and “that is why it swirled when I stepped on the brakes; made it swirl so easily.” She was going about 35; the Chevrolet was about a car length ahead of her when it started off and it whirled right back; she had not noticed the Chevrolet until it started to turn off. She first saw the Lewis ear when it was about 40 feet away: “. . . I was already at a complete stop when she hit me, and I saw her coming and I just sit there to see, I mean, would she stop”; she was in lane 2 when she first saw the Lewis car; she had swirled around crossways of the traffic and come to a stop; her motor was still running. In her deposition she stated she had been stopped four or five minutes, but this obviously was an incorrect estimate; she gave no signal before turning into lane 2; the Chevrolet was about 15 feet in front of her when it started to turn into lane 3. When she was afraid she would hit the Chevrolet she put on her brakes and turned to the left. After the accident she did not give Mrs. Lewis her name or address or exhibit to her her operator’s license.