Edrington v. Stong

HOYT, J. pro tem.

*

Appellant, Stanley Wayne Edrington, brought an action for personal injuries and for damages to his truck received in a highway accident on December 14,1956.

The accident happened about 3 a. m. one-half mile south of San Lucas, California. A lumber truck owned by respondent Stong, and being driven in a southerly direction by respondent Fowler, “jackknifed,” crashed through a guard rail, and came to rest, on fire, in an open field. Lumber was scattered over the highway. Shortly thereafter a truck driven and owned by appellant Edrington approached the scene from the north. At the same time, a truck owned by plaintiff and respondent Tatum was approaching from the south. As Edrington rounded a curve, he observed the flames from Fowler’s truck ahead of him and to the right. He then observed lumber on the highway ahead, but was unable to stop his truck before hitting the lumber. Meanwhile, the Tatum truck had nearly stopped about 300 feet short of Fowler’s blazing truck. Edrington’s truck went out of control when it hit the lumber on the highway. It veered into the oncoming traffic lane, continued down the highway for about 200 feet, then struck and took out approximately 80 feet of guard rail before striking Tatum’s truck with an impact that demolished both trucks. It came to rest, headed northward, beyond Tatum’s truck. After appellant Edrington began to apply his brakes he traveled 100 feet to the lumber, and went about 280 feet further before striking Tatum’s truck.

Edrington sued Stong and Fowler; Tatum sued Edrington, Stong, and Fowler. The actions were consolidated for trial. Tatum recovered a judgment against Edrington, Stong and Fowler; Stong and Fowler obtained a verdict against Edrington. This appeal is by Edrington only.

Appellant Edrington urges that the court committed

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error in failing to instruct on res ipsa loquitur. The jury-returned a verdict for plaintiff Tatum against defendants Edrington, Fowler and Stong; and for defendants Fowler and Stong, as against Edrington. The jury must have found, therefore, that Edrington, Fowler and Stong were each negligent; that their negligence concurrently caused Tatum’s damage; and that Edrjngton was barred from recovery by his contributory negligence. Under the court’s instructions, which the jury must be presumed to have understood and followed, no other explanation of the verdicts is possible. Appellant argues that the refusal of the requested instruction on res ipsa loquitur was prejudicial because, “if given, they might have led the jury to infer that Fowler was negligent.” Since the jury did find Fowler negligent, no prejudice can have occurred. Edrington’s recovery was barred by the jury’s finding of contributory negligence and an additional instruction as to Fowler’s negligence could not have altered the result. When a defense verdict could only have been based on a finding that plaintiff was contributorily negligent, error in instructing on defendants’ negligence does not warrant reversal. In