Batchelor v. Caslavka

California Court of Appeal Nov 17, 1954 No. Civ. 20235Published

Before: Vallee

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Holding. The court held that the evidence was sufficient to support the jury's verdict for the defendant, and that the trial court did not err in its evidentiary rulings or in refusing to instruct the jury on the doctrine of imminent peril.

Issues

Whether the evidence was sufficient to support the jury's verdict.
Whether the trial court erred in its instructions to the jury regarding the weight of testimony from an adverse witness called under section 2055.
Whether the trial court erred in refusing to strike a non-responsive answer to a question.
Whether the trial court erred in refusing to give an instruction on the doctrine of imminent peril.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“It may reasonably be inferred from the evidence that the driver of the butane truck was not negligent and that plaintiff was negligent.”

“Once such testimony is before the court after a trial on the merits it is substantive evidence in the case for all purposes to which it is relevant”

“There is no evidence in the record that plaintiff either knew or thought he was in peril, and there is no evidence that he did anything assuming that he was in peril.”

VALLÉE, J.

—Appeal by plaintiff from an adverse judgment entered on a verdict of a jury in an action for damages for personal injuries.

[821]

The accident occurred about 10:30 a. m. on July 11, 1949, on Mayflower Street in the county of Los Angeles. The pavement on Mayflower was between 22 and 24 feet wide. The area was residential. Plaintiff, driving a Ford truck, entered Mayflower at its intersection with Duarte Road and went south. When he entered Mayflower there were two vehicles ahead of him going south: a butane truck which was a block and a half away, and an automobile which was following the truck. Plaintiff attained a speed of 30 miles an hour, went to the left side of the road, passed the automobile, slowed down and went to the right side of the road. When he did so the butane truck and the automobile were 75 to 100 feet apart. Plaintiff moved out to the left side of the road to cut around the butane truck and increased his speed. During this time the butane truck slowed down from 15 to between 5 and 10 miles an hour, when it made a left turn and collided with plaintiff’s truck. Plaintiff did not give a horn signal.

The driver of the butane truck testified his truck was 6 to 7 feet wide; when he was 90 to 100 feet from the point of the collision he looked in his rear mirror and saw plaintiff’s truck behind another car from 350 to 500 feet away; his truck was equipped with a signaling device which he extended horizontally when he was 90 feet away from his turn; plaintiff’s speed in attempting to pass him was 45 to 50 miles an hour; the impact was at the left front wheel of his truck; the signal arm was “tore off”; after the impact plaintiff’s truck traveled 100 feet.

Plaintiff first says the evidence was insufficient to support the verdict. The point is manifestly without merit. It may reasonably be inferred from the evidence that the driver of the butane truck was not negligent and that plaintiff was negligent. The jury may well have concluded that the road was relatively narrow; that plaintiff did not watch the butane truck sufficiently; and that he traveled alongside the truck in an attempt to overtake it at an excessive rate of speed. It could have concluded that plaintiff violated section 510 of the Vehicle Code which provides: “No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property.” It could also have concluded that he violated section 671 of the Vehicle Code which in part provides: “The driver of a

Batchelor v. Caslavka

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