Fueste v. Johnson

SALSMAN, J. This appeal is from a judgment in favor of the defendants entered upon a jury’s verdict in plaintiff’s suit for damages for personal injuries. Two points are urged for reversal, the first being a claimed insufficiency of the evidence to support the verdict, and the second, a claim of prejudicial misconduct on the part of defense counsel in argument to [792]the jury. The case turns largely upon its facts, and we therefore treat each issue briefly, but with sufficient particularity so as to demonstrate that neither has any merit.

In reviewing the claim of an insufficiency of the evidence we are guided by the rules so clearly summarized in Crawford v. Southern Pacific Co., 3 Cal.2d 427 [45 P.2d 183], and which need not be repeated here. (See also Overton v. Vita-Food Corp., 94 Cal.App.2d 367, 370 [210 P.2d 757], and Estate of Arstein, 56 Cal.2d 239-240 [14 Cal.Rptr. 809, 364 P.2d 33].)

The evidence disclosed that plaintiff was driving his vehicle south on the Nimitz Freeway, near the City of Hayward. It was dark, raining, and the traffic was heavy. The defendant Joan Johnson was following plaintiff, and the defendant Catalano followed Johnson. Plaintiff’s ear and the Johnson car were proceeding at about the same rate of speed, 35 miles per hour. A distance of 50 to 75 feet separated the two vehicles. Joan Johnson could see a short distance ahead of plaintiff’s vehicle, but saw no ear immediately in front of plaintiff. Plaintiff made a sudden stop on the freeway. Defendant Johnson saw no indication by plaintiff’s brake lights that plaintiff’s brakes were being applied. Plaintiff gave no hand signal, but testified his lights were on and in good working order. Although there was some water on the highway at the scene of the accident, traffic ahead of plaintiff did not find it necessary to stop, and defendant Johnson was able to walk about without getting her feet wet, even though wearing open-toe shoes.

This recital of only a part of the evidence sufficiently shows that the jury’s verdict is supported by substantial evidence. It was a question of fact whether or not plaintiff’s sudden stop on the freeway amounted to negligence. The jury apparently determined from all of the evidence that it did, and that it contributed to the happening of the accident. Moreover, it was plaintiff’s duty by law to give an appropriate signal of his intention to stop, either by hand and arm, signal lamp, or mechanical device. (Veh. Code, §§ 22109, 22110.) Plaintiff’s violation of these statutes would be negligence per se, and would constitute contributory negligence if failure to comply contributed directly to plaintiff’s injury. (Hurtel v. Albert Cohn, Inc., 5 Cal.2d 145-147 [52 P.2d 922]; Lutz v. Schendel, 175 Cal.App.2d 140 [345 P.2d 488].) The defendant Johnson’s testimony that she saw no signal lights to indicate plaintiff’s application of his