Opinion
HANSON (Thaxton), J. Introduction
This is an action arising out of a three-car chain reaction rear-end-type vehicular accident. Trial was by jury which returned a verdict for $500,000 in favor of plaintiff Alfred Harris (plaintiff and/or Harris) and against defendants City of Compton (City) and Jasper J. Jackson, Jr. (Jackson). Defendants City and Jackson appeal.1 We affirm.
Procedural History
On June 18, 1980, plaintiff Harris filed a complaint in the Municipal Court of the Compton Judicial District seeking $15,000 general damages and special damages for injuries and loss incurred by reason of a three-car chain reaction rear-end-type accident which occurred on March 2, 1980. The complaint named as defendants: City, Jackson (police officer for City), and Stanley B. Fuller (Fuller). Defendant City was sued on a respondeat superior theory, holding it responsible for Officer Jackson’s alleged negligence.
[6]On July 25, 1980, defendant City, represented by a deputy city attorney, filed an answer generally denying allegations of the complaint and alleging certain affirmative defenses. City also filed a “Cross-complaint for Subbrogation [sic], Property Damage and Indemnity” naming as cross-defendants Stanley Bruce Fuller, as driver, and Nathaniel Brown, as owner, of the 1972 Ford Torino involved in the accident. The cross-complaint sought to recover workers’ compensation benefits (temporary, permanent, and medical) paid to police officers Jasper J. Jackson, Jr. and Daniel Correa, and property damage to City’s 1978 Chevrolet patrol car in the sum of $458. The cross-complaint also sought from said cross-defendants partial indemnification of a judgment in any amount determined on a comparative fault basis “under the principles enunciated in American Motorcycle Assn. v. Superior Court, 20 Cal.3d 578 (1978).”
On June 5, 1981, plaintiff Harris’ motion to transfer the matter to the superior court was granted. On May 16, 1983, the matter was set for the mandatory settlement conference. On August 10, 1983, the trial date was set for September 12, 1983.
On August 18, 1983, pursuant to a motion filed by plaintiff Harris, the court continued the trial date of September 12, 1983, on the ground that “plaintiff [Harris] must undergo surgery as a result of injuries sustained in the accident” declaring “that plaintiff [Harris] had been advised by Myron Koch, M.D., an orthopedic surgeon, and Eli Blass, M.D. that the disc injury sustained by plaintiff will require a decompressive laminectomy, disectomy, and spinal fusion. Mr. Harris, however, out of necessity, has had to defer the suggested surgical intervention. The surgery was postponed due to the medical condition of his wife (who subsequently died of cancer) and in the interest of carrying [szc] for his two minor children (aged 6 and 11) one of whom is retarded, requiring considerable attention.”
On September 12, 1983, the court granted plaintiff’s motion for a continuance of the trial to May 7, 1984.
On May 7, 1984, the trial by jury was trailed to May 8, 1984, at which time it commenced. The cause was tried on the complaint alone. The issues raised in the cross-complaint were not before the jury. Fuller, named as a defendant in the complaint, was not served and was called as a witness for plaintiff.
On May 16, 1984, the jury, by a vote of nine to three, returned a verdict in favor of plaintiff Harris and against defendants City and Jackson in the sum of $500,000. On June 26, 1984, the court denied defendants City and [7]Jackson’s motion for new trial. On July 7, 1984, defendants City and Jackson timely filed their notice of appeal.
Facts
The evidence adduced at trial is summarized as follows:
On March 2, 1980, between 4 and 5 p.m., a three-car chain-reaction-type accident occurred at the intersection of Marcelle Street and Long Beach Boulevard in the City of Compton. The intersection was controlled by a trilight traffic signal and the pavement was wet from rain but visibility was good.
Prior to the accident, the three cars involved in the accident were proceeding generally northbound on Long Beach Boulevard in the number one lane. Plaintiff Harris stopped his 1970 Volkswagen (the lead car) at the intersection of Marcelle Street for the red traffic signal. Defendant Jackson, a police officer on duty for City, brought his patrol car, a Chevrolet owned by City, to a full stop behind plaintiff’s Volkswagen. The third car, a 1972 Ford Torino driven by Fuller (a named but unserved defendant) crashed into the rear of the police car propelling it into the rear of plaintiff Harris’ car.
Earlier in the afternoon, defendant Jackson and his partner, Officer Daniel Correa, had been patrolling an industrial area and had found two large wooden spools (or tables) outside one of the buildings. They decided to take the spools to the station for booking as “found” property. They put these items in the trunk of their police car with the round part hanging outside the trunk, partially obstructing the taillights of the car. They then secured the trunk with a bungi cord.
Fuller (the named but unserved defendant) called as plaintiff’s witness at trial, testified that the police car made a sudden stop and due to the obstruction of the police car’s taillights by the wooden spools, he could not measure the distance between his car and the police car and therefore could not stop in time. He also testified that, due to the wet pavement, his brakes locked and he slid into the rear of the police car.
Plaintiff Harris, a construction worker, suffered back injuries as a result. He was diagnosed by his doctors as having a bulging disc which would not heal without major surgery and that he could never resume the hard physical labor required of a construction worker.
[8]Issues
On appeal, defendant City and Jackson contend (1) that police officer Jackson violated no duty owed to plaintiff as a matter of law; (2) that there was insufficient evidence in support of the jury verdict; (3) that there was no proximate causation, as a matter of law; and (4) that the jury was not properly directed when it asked for additional instruction during its deliberations.
Plaintiff Harris asks that defendant City be penalized for pursuing a frivolous appeal, and that sanctions be awarded as authorized by Code of Civil Procedure section 907 and rule 26(a), California Rules of Court.
Discussion
I.
Defendant City first complains that the evidence established no violation of duty owed to plaintiff by City’s police officer, Jackson. We disagree.
We note, first of all, that “[ajctionable negligence involves a legal duty to use due care, a breach of such legal duty, and the breach as the proximate or legal cause of the resulting injury.” [Citation.] The duty of care [is] always related to ‘some circumstance of time, place and person’ [citation].” (United States Liab. Ins. Co. v. Haidinger-Hayes, Inc. (1970) 1 Cal.3d 586, 594 [83 Cal.Rptr. 418, 463 P.2d 770].) And, as was explained in Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46 [123 Cal.Rptr. 468, 539 P.2d 36], “[t]he determination of duty is primarily a question of law. [Citations.] It is the court’s ‘expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection. ’ [Citation.] . . . While the question whether one owes a duty to another must be decided on a case-by-case basis [fn. omitted], every case is governed by the rule of general application that all persons are required to use ordinary care to prevent others from being injured as the result of their conduct. [Citation.] However, foreseeability of the risk is a primary consideration in establishing the element of duty. [Citation.] ... [¶] [and] foreseeability is a question of fact for the jury. [Citation.]”
Defendant argues specifically that Officer Jackson, in transporting the spools with taillights obscured, was acting in a manner sanctioned by several sections of the Vehicle Code, and thus could not, as a matter of law, have been found in violation of any legal duty owed to plaintiff. The [9]argument lacks merit. The case was not tried on any theory related to negligence per se, i.e., statutory negligence, but was tried and decided on the basis of common law negligence—which in California involves the duty of care owed to all persons set forth in Weirum, supra, 15 Cal.3d 40. Whether or not City’s police officer (Jackson) was complying with the Vehicle Code was not in issue at either the pleading or trial stage in the litigation below, and may not be introduced as an issue in the case for the first time on appeal. (See 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 281, p. 4269; Ernst v. Searle (1933) 218 Cal. 233, 240 [22 P.2d 715]; Signal Hill Aviation Co. v. Stroppe (1979) 96 Cal.App.3d 627, 638 [158 Cal.Rptr. 178].)
It was within the jury’s province—and supported by the evidence adduced below—to find that there was a foreseeable risk to other drivers in the manner of transporting the “found” items chosen by the police officer, and that this conduct violated the common law duty of care at issue in the case. We find no error in this determination.
II.
Defendant City secondly contends there was insufficient evidence in support of the verdict.
A “general principle of appellate practice” is that “[a] judgment or order of the lower court is presumed correct. . . error must be affirmatively shown.” (6 Witkin, Cal. Procedure (2d ed. 1971) § 235, p. 4225, italics in text.) When, as here, the appealing party questions the sufficiency of the evidence adduced below in support of the judgment (jury verdict), it follows from the presumption stated above that the reviewing court must “consider the evidence in the light most favorable to the prevailing party, giving him the benefit of every reasonable inference, and resolving conflicts in support of the judgment.” (6 Witkin, supra, § 245, p. 4236, italics in text.) “[T]he power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury.” (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429 [45 P.2d 183]; see also Nestle v. City of Santa Monica (1972) 6 Cal.3d 920 [101 Cal.Rptr. 568, 496 P.2d 480].)
Here, both the plaintiff and the third driver, Fuller, testified that the trunk of the police car was fully open and that there were two large round objects hanging out of the trunk and over the bumper. Fuller testified that when the police car stopped suddenly in front of him, he could not see the brake lights and consequently was not alerted to brake his own vehicle in time to avoid the collision.
[10]Plaintiff also presented the testimony of an expert, Harry J. Krueper, a consulting civil engineer (educated at UCLA and Berkeley) in the field of traffic movement and specializing in calculations of speed and manueverability by vehicles and accident reconstruction. Krueper testified that he prepared two spools of the approximate size and shape as those in the trunk of the police vehicle, and put them in the trunk of a white 1978 Chevrolet Nova (similar to the police vehicle) to approximate what Fuller saw prior to the collision. Krueper testified that in his opinion the spool tops in the trunk of the police car obstructed its taillights and caused a delay in Fuller’s reaction time, which resulted in the police car being struck by the Ford Torino driven by Fuller.
The testimony of witnesses Fuller and Krueper was for the jury to assess, and constituted substantial evidence upon which the jury could and did base a finding of liability. Implicit in that finding was that the police officer of defendant City had not conducted himself with a reasonable amount of prudence and had thus violated the legal duty of care owed to plaintiff.
III.
Defendant City next argues that the accident was occasioned by Fuller’s lack of care (i.e., faulty brakes and lack of attentiveness), rather than by any conduct of their police officer, and that the judgment should be reversed. As previously discussed, the breach of duty by a defendant must proximately cause the harm suffered by the plaintiff before a defendant can be held liable for said harm. “Under well-established common law principles, a negligent tortfeasor is generally liable for all damage of which his negligence is a proximate cause; stated another way, in order to recover damages sustained as a result of an indivisible injury, a plaintiff is not required to prove that a tortfeasor’s conduct was the sole proximate cause of the injury, but only that such negligence was a proximate cause. [Citations.]” (Italics original.) (American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 586 [146 Cal.Rptr. 182, 578 P.2d 899].)
Here, the jury was fully instructed on the law governing proximate cause. As BAJI No. 3.77 on concurring causes (given to the jury) observes, “[t]here may be more than one legal cause of an injury.” That instruction goes on to say that where the negligence of two or more persons contributes to the harm to the plaintiff, the conduct of each is regarded as the legal cause. This is a correct statement of the law. It allows a plaintiff to recover from joint or concurrent tortfeasors or choose to prosecute his claim against only one of them. (See, 4 Witkin, Summary of Cal. Law (8th ed. 1974) Tofts, § 624, pp. 2906-2907.)
[11]The jury impliedly found that the conduct of Officer Jackson, in driving a police vehicle with obstructed taillights, contributed to plaintiff’s injuries as a legal cause. We uphold that finding.
IV.
Defendant City finally argues that the jury was not adequately instructed when, during its deliberations, it sent a message to the judge asking for information about some provisions in the Vehicle Code concerning rear view mirrors.
The jury requested in writing: “Is it legal to drive a car on a California highway with the view of the rear view mirror obstructed with one side view mirror? Question: Are there side view mirrors, one on each side, on a 1978 Nova police car?”
The court replied: “Question #1—You must decide the facts within the law already given to you. Question #2—there was no evidence presented on that issue.”
Defendant City also asserts in its brief that the judge made the above response outside of the presence of counsel, which was in contravention of Code of Civil Procedure section 614. That section requires additional instruction. of the jury to take place only in the presence of counsel or after notice to counsel.
When, as here, the appealing party claims that the jury has been misdirected, it must appear that the misdirection was substantial and prejudicial, i.e., materially affecting the outcome of the matter. An examination of the entire cause must lead to the conclusion that the error complained of has resulted in a miscarriage of justice; only then is reversal compelled. (Code of Civ. Proc., § 475; Cal. Const., art. VI, § 13.)
It is not clear from the record before us who was actually present when the questions asked by the jury during deliberations were answered; the parties do not agree upon this point. In view of our analysis of the case, we cannot say that the trial court improperly advised the jury in response to its request for additional information. If error was committed in communicating to the jury outside the presence of counsel, we deem it harmless under the circumstances.
V.
Plaintiff has asked us to impose sanctions on defendant City for taking a frivolous appeal with the purpose of delaying the day of reckoning [12]for defendant City. We are authorized both by statute (Code of Civ. Proc., § 907) and rule 26(a), California Rules of Court, to impose such sanctions. Our state Supreme Court has approved this method of discouraging unnecessary resort to the appellate process for purposes of delay or harassment. (In re Marriage of Flaherty (1982) 31 Cal.3d 637 [183 Cal.Rptr. 508, 646 P.2d 179].) Flaherty, however, cautions reviewing courts to resolve doubts in favor of those seeking review. We cannot say that defendant City’s arguments here were entirely devoid of merit, in the sense that we understand triggers the sanctions process. We accordingly resolve the doubt in favor of defendants City and Jackson.
Disposition
The judgment is affirmed.
Spencer, P. J., and Lucas, J., concurred.
Pursuant to rule 12a. California Rules of Court, we have augmented the record on appeal by ordering up the superior court file and all exhibits.