Watkins v. Ohman

CONLEY, P. J. The plaintiff, who as a guest in an auto-

mobile, was injured on April 27, 1964, when the car in which she was sitting was struck by another vehicle co-owned by Eugene Ohman and his wife, Donna Mae Ohman, and driven by her, appeals from a verdict adverse to her claim. There is no suggestion that there was contributory negligence, and the evidence shows that Mrs. Watkins was injured as a result of the collision, notwithstanding a sharp conflict as to whether the injury was of major proportions or trifling. It may be deduced accordingly, from an examination of the record, that the jury based its verdict on the theory that the driver of the defendants’ car was free from negligence.

It is an inescapable conclusion that liability for torts of this character is essentially welded to a theory of blame; here the defendant driver, while operating an automobile on the public highways of the City of Fresno, was [503]required to act as a reasonably prudent person under the same or similar circumstances; and it was for the jury to determine whether or not Mrs. Ohman so acted. If she did—and that is the jury’s implied finding—there was no liability on the part of the defendants, and they were entitled to a verdict. (Prosser, Law of Torts, (3d ed. 1964), pp. 16-23 and 143-146; 2 Harper and James, The Law of Torts, pp. 744-758.)

Plaintiff was riding in the back seat of a Chrysler; the car, going in a northerly direction, properly halted at a stop sign at the intersection of Chestnut Avenue and Tulare Street; the defendant, Donna Mae Ohman, was driving a 1956 Ford car, also in a northerly direction on Chestnut Avenue behind the Chrysler. She, too, stopped at the intersection some two to four feet to the rear of the Chrysler. In a matter of approximately two minutes the Ohman car hit the Chrysler and pushed it into the intersection. Defendant testified that the casualty was caused by a whirlwind, which blew into her open window and hit her in the face, getting sand in her eyes, and that her car, the motor of which had been idling slowly, must have moved forward at a speed of about five miles an hour; her foot had been on the brake before the dust hit her face, the car being in gear but stopped by reason of the brake.

The plaintiff testified that she was thrown backward and then forward by the impact, that the left side of her body struck the front seat, and that she immediately felt a burning in the low back area. She called her physician, Dr. C. C. Tan, an orthopedic specialist, the next day. He was out of town and she was sent to Dr. Papazian, who had her X-rayed at the Fresno Community Hospital. He prescribed pain tablets. She had previously undergone a laminectomy and spinal fusion of her lower back on March 22, 1963, from which she had partially recovered. After the collision, appellant said that she spent part of each day in bed for two or three weeks with headaches, a tight feeling and pain in the neck and upper back, and numbness of the legs. She received treatment from Dr. Tan, after his return to Fresno, until May, 1965. The bill for his services was stipulated to be $680, the Community Hospital X-ray bill $30, and Dr. Papazian’s bill $5; it was also stipulated that a total amount of $729.86 was reasonable compensation for the aid given her and could be introduced into evidence, although liability was denied.