Opinion
4-23-1952
BROOKS et al. v. E. J. WILLIG TRUCK TRANSP. CO. et al. * Civ. 14746.
Dana, Bledsoe & Smith and Morton B. Jackson, San Francisco, for appellants. James C. Purcell, Michael Riordan, San Francisco, for respondents.
BROOKS et al.
v.
E. J. WILLIG TRUCK TRANSP. CO. et al. *
April 23, 1952.
Hearing Granted June 19, 1952
Dana, Bledsoe & Smith and Morton B. Jackson, San Francisco, for appellants.
James C. Purcell, Michael Riordan, San Francisco, for respondents.
NOURSE, Presiding Justice.
This is an action for the allegedly wrongful death of John Misher Brooks, who on January 16, 1947, after 11 o'clock p. m. being on foot on U. S. Highway 101 near its intersection with State route 37, met his death as the result of a collision with a truck and trailer owned by defendant E. J. Willig Truck Transportation Company and driven in its service by defendant Farnsworth. Plaintiffs, the wife and minor daughter of decedent, recovered and defendants appeal.
The original complaint, filed on March 14, 1947, was in one count, which alleged in substance that defendant was 'negligent in the operation and control of said truck and trailer', that by reason of said negligence said truck and trailer ran into and over decedent and injured him in consequence of which he died. The first two trials resulted in disagreement of the jury. After the second trial plaintiffs on November 9, 1948, moved for leave to file an amended complaint on the ground that the second trial had brought out evidence indicating that decedent had not been immediately killed by the first impact with the truck and trailer, that the driver, knowing of the impact, failed immediately to stop as required by section 480, Vehicle Code and to render aid as required by section 482, Vehicle Code and that death was caused either by further injury caused by the truck and trailer dragging or crushing decedent when they could have been stopped or by want of medical care when decedent was left helpless in the highway or by his being struck by one or more other vehicles when he was left there in that condition, which evidence had been unknown to plaintiffs at the time of the filing of the original complaint. After obtaining leave, plaintiffs on December 27, 1948, filed a first amended complaint which added to the original one count three more counts alleging the three possibilities stated above, each new count expressly alleging violation of section 480 or sections 480 and 482 Vehicle Code. Defendants together with their answer to the first count, demurred to the other three counts arguing that the causes of action based on sections 480 and 482 Vehicle Code were wholly distinct and separate from the cause of action alleged in the original complaint and were barred by the statute of limitations. The demurrers were sustained without leave to amend. The matter proceeded to its third trial on the remaining first count.
From the evidence received at said third trial we note for the moment only the following undisputed facts. The intersection at which the accident happened is in open country, unlighted, level and macadamized. U. S. 101 is there a four lane highway, the two northbound lanes being divided from the southbound lanes by dividing islands. Defendant Farnsworth was driving the empty truck and trailer north on highway 101 in the most easterly (slow) lane. Some 200 to 250 feet in front of him he saw something moving from the most northerly dividing island eastward into the northbound lanes of the highway. Later this proved to have been decedent Brooks. Farnsworth applied his brakes somewhat and blew his horn. The moving object gave no indication that it noticed it. At 150 feet from the object Farnsworth braked again and passed over to the inside (fast) lane, but the pedestrian also moved to the inside lane and collided with the right front side of the truck. Farnsworth had at last braked as much as he could but when he felt the right front wheel going over Brooks' body he released his brakes and drove away letting all other wheels of the right side of truck and trailer pass over Brooks. When Farnsworth did so he did not know over which part of Brooks' body the right front wheel and other wheels passed. There was no other traffic near the place of the accident; there were no eyewitnesses except Farnsworth. Farnsworth did not report the accident. The next morning highway patrol officer Myron Smith, who was investigating the accident after Brooks' dead body had been found on the highway, stopped Farnsworth, then driving the truck and trailer south on 101. Farnsworth first denied knowledge of the accident but when Smith found traces of an impact and some damage caused by it on the right front of the truck he admitted the collision.
Over defendants' objection the testimony given at the second trial by Father Richard W. Powers, an army chaplain with the rank of major, was received in evidence. The fact that when Father Powers first found Brooks on the roadway he was not in the same place and position and not so badly mutilated as when others thereafter found the body while Father Powers had gone to call an ambulance had been the main ground for the amendment of the complaint. At the end of the taking of the evidence on the third trial plaintiffs moved to amend the complaint to conform to proof, the amendments being approximately to the same effect as the amendments eliminated by the sustaining of the demurrers. The court denied the motion on the ground that in the original complaint negligence was alleged in general terms and there had been no such interference by any third party or third element as to break the chain of causation.
Appellants assign thirteen errors of law allegedly committed by the trial court twelve of which relate to instructions. We shall first treat the instruction the giving of which, we have concluded, necessitates reversal. It is plaintiffs' instruction 70, given by the court, relating to the duty of defendant Farnsworth to stop and render aid to Brooks in accordance with the standards set by sections 480 and 482, Vehicle Code, irrespective of who of the two bears the responsibility for the original collision and injuries and expressly declaring that if Farnsworth did not conform to those standards and if said negligence was the proximate cause of Brooks' death the verdict must be for plaintiffs. Appellants urge that no instruction on this subject should have been given because it was outside of the issues; the statutory duty to stop and render aid, imposed by the instruction, was wholly separate and apart from negligence in the operation of the truck and was barred by the statute, demurrers to counts added to the complaint in relation to said statutory duty had been sustained and the motion to amend to conform to proof to bring such counts in again had been denied.
The violation of said statutory duty to stop and render aid, an affirmative duty which is expressly made independent from any negligence in the causing of the original accident, constitutes a separate cause of action which must be separately stated, § 427, Code Civ.Proc.; Summers v. Dominguez, 29 Cal.App.2d 308, 312-313, 84 P.2d 237, and cannot over objection be proved under a complaint in one count based solely on negligence in the operation of a vehicle even if said specific negligence is alleged in general terms. The trial court was mistaken when it denied the motion to amend to conform to proof by adding counts relating to the statutory duty, on the ground that the allegation of negligence in those general terms would also comprehend the failure to stop and render aid, so long as there was no intervention of a third party so independent as to break the chain of causation. Neither can it be said that defendants acquiesced in the introduction of the failure to stop and render aid as an issue in the case, and were therefore estopped from claiming on appeal that no such issue was in controversy. '[S]uch principle of estoppel operates only where it appears 'from the record on appeal * * * that the issue was actually and intentionally tried by the introduction of pertinent evidence, and that the party against whom the estoppel is invoked consciously participated or acquiesced in such trial, as if the issue had been made by the pleadings * * *'. [citations] Furthermore, there is the added 'qualification that evidence which is relevant to an issue actually raised by the pleadings cannot be considered as authorizing the determination of an issue not presented.'' Miller v. Peters, 37 Cal.2d 89, 93, 230 P.2d 803, 806. Under these rules the appellants in this case are not estopped. Appellant Farnsworth's failure to stop and render aid was material as an indication of his consciousness of responsibility for the accident; appellants' reference to the subject was mostly for the purpose of deploring and trying to explain the failure to stop and render aid; that they did not consciously participate or acquiesce in the trial of their liability based on failure to comply with said statutory duty is shown by their demurrers to the counts relating to it, their objection to the introduction of the testimony of Major Powers and their opposition to the amendment to conform to proof.
However, even if the failure to render aid was not in issue under the one count which was tried, it would probably have served no useful purpose to reverse because of the instruction to consider said statutory duty, if the demurrers to the counts which tried to introduce the said matter ought not to have been sustained or the amendment to conform to proof ought to have been permitted and if appellants were not prejudiced by the fact that the instruction was given notwithstanding the incorrect position taken by the trial court as to these points. (In this respect the rule must be taken into consideration that a trial court at any time prior to final judgment may reconsider its ruling on a demurrer, even though no request to amend has been made. Bank of America v. Superior Court, 20 Cal.2d 697, 702, 128 P.2d 357. Accordingly the parties have discussed at length the question whether the causes of action based on violation of the statutory duty to stop and render aid were barred by the statute of limitations, when on November 9, 1948, plaintiffs first moved to introduce them into the action by amendment. As under section 340, Code Civ.Proc. an action for death or injury tortiously caused must be commenced within a year, the statute at that date had run except if the amended complaint could be deemed filed as of the date of the original complaint. The modern rule in that respect, stated in Wennerholm v. Stanford University School of Medicine, 20 Cal.2d 713, 717-718, 128 P.2d 522, 524, 141 A.L.R. 1358, is that 'Unless the amended complaint sets forth an entirely different cause of action from the original * * * the amended complaint, for the purposes of the statute of limitations, must be deemed filed as of the date of the original complaint' and that there is no entirely different cause of action 'so long as recovery is sought in each complaint upon the same general set of facts. * * * A mere change in legal theory will not subject the amended complaint to the bar of the statute of limitations.' It would seem that under this rule it could well be held that the amendments related back to the original complaint, if the tortiously caused death of Brooks in the night of January 16, 1947, on U. S. Highway 101 in connection with a collision with a truck driven by defendant Farnsworth is considered as the 'general set of facts' on which both original complaint and amendments were based. The change from common law negligence to violation of the statutory affirmative duty to stop and render aid could be considered a mere change in legal theory. Under Rule 15(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A., which provides for relating back 'whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading,'--a rule which may well be the equivalent of the 'same general set of facts' rule of the Wennerholm case--it was held that in a wrongful death action in which the complaint alleged the negligent causing of the death of a railroad employee struck by cars backed in an unlit railroad yard at night, because of failure to provide a proper lookout for such employee, to give him proper warning of the approach of the cars, to keep the head car properly lighted, and to warn him of an unprecedented and unexpected change in the manner of shifting cars, an amendment charging failure to keep a light on the rear of the locomotive used in yard service as prescribed by the rules of the Interstate Commerce Commission under the Federal Boiler Inspection Act, 45 U.S.C.A. § 22 et seq. related back, as both the original complaint based on negligence and the amendment based on the violation of a statutory duty 'related to the same general conduct, transaction and occurrence which involved the death of the deceased.' Tiller v. Atlantic Coast Line R. Co., 323 U.S. 574, 65 S.Ct. 421, 424, 89 L.Ed. 465. However appellants argue forcefully that in California in a comparable situation the contrary position was taken in McKnight v. Gilzean, 29 Cal.App.2d 218, 84 P.2d 213. In that case the original action for personal injuries sustained in an automobile accident was brought against the driver and against two other defendants as employers of the driver, whereas the amended complaint, filed more than a year after the accident, added two causes of action based on the statutory liability of said other two defendants under section 402 of the Vehicle Code which section holds the owner of a motor vehicle liable for injury resulting from negligence in the operation of such motor vehicle by a person using or operating the same with the permission of the owner. It was held that the two added causes of action based upon statutory liability and requiring proof of additional facts were foreign to the basis upon which the original cause of action was founded and the sustaining of a demurrer and motion to strike was affirmed. The analogy is clear. Both in the case before us and in the McKnight case the amendment related to the same general injury as the original complaint (the identity of the injury is even stronger in the McKnight case), in both cases the amendment tried to replace a generally recognized common law liability alleged in the original complaint by a statutory liability not definitively recognized at common law (Caveat to Restatement Torts § 322; Prosser, Torts p. 192) and in both cases the new causes of action required proof of facts not alleged in the original complaint. We would have been inclined to hold that under the Wennerholm case, supra, neither the change in legal basis nor the necessity of proof of additional facts would prevent relating back of the amendment for the purpose of the statute if both related to the same general set of facts (injury) and that the McKnight case, being earlier in time, should be considered overruled by implication by the Wennerholm case, were it not that the McKnight case had just recently been followed in Burnett v. Boucher, 108 Cal.App.2d 37, 238 P.2d 1, and that the Supreme Court had denied a hearing. We must therefore accept the McKnight case as still representing the law and, as we do not see any valid distinction between the McKnight case and the case before us with respect to the relating back we feel constrained to hold that also in our case the causes of action based on violation of the statutory duty to stop and render aid were barred by the statute and could not be tried. The expression 'the same general set of facts' from the Wennerholm case does not have so clear and undisputable a meaning that it would be impossible to hold that the allegation of another duty requiring proof of additional facts as basis of liability resulting from the same accident is not based on 'the same general set of facts', although we would prefer a wider interpretation of 'the same general set of facts', which would permit relating back whenever, as in the present case and the McKnight case, the original action has not been permitted to become stale, newly found evidence necessitates changes in the original allegations as to the same occurrence, and there is no showing that such amendment would unjustly prejudice the defense. When however it must be held that the statute had run on any cause of action based on the statutory duty to stop and render aid there can be no doubt that the instruction which permitted the jury to hold defendants responsible in case of violation of said duty, independent of any negligence in causing the original impact, was prejudicial error and must lead to reversal. It must nevertheless be noted that our holding that the statutory duty to stop and render aid is outside the issues of the case does not imply that defendants cannot be liable for possible further injury caused to Brooks by another vehicle when Brooks lay disabled on the roadway. If Brooks' helpless condition was caused by negligence of defendants, said negligence can be considered a concurrent proximate cause of his being run over again if such further accident was foreseeable. Hill v. Peres, 136 Cal.App. 132, 138, 28 P.2d 946.
As there must at any rate be a reversal we shall treat appellants' further assignments of error only in so far as this is useful as a directive to be followed on a new trial, without considering whether any possible error found would be prejudicial enough to require reversal or whether appellant might have induced or waived the error.
Appellants assign as prejudicial error the sustaining of objections to certain impeaching questions put by them to officer Myron Smith. Said witness testified at the trial that defendant Farnsworth had told him that he had had three beers during the day of the accident, and that, after the drinking and before the accident, he had slept in his truck, standing on a wide shoulder of the highway, that he had not slept because he had too much to drink, but that he knew that if he stopped and called the highway patrol (after the accident) 'that they would smell the odor of alcohol on his breath and they would crucify him.' Appellants' questions were intended to prove and they made offer of proof to the effect that the witness had not reported the last quoted statement of Farnsworth to the district attorney of Marin County when he reported to him the day after the accident nor did he report it when he was heard at a Navy investigation six days after the accident--decedent Brooks was in the Navy--although he there testified that Farnsworth had stated that he had slept three hours just prior to the accident and that therefore witness thought he was refreshed and fairly alert, nor at the preliminary hearing of a criminal action against Farnsworth, violation of § 480, Vehicle Code, where the witness volunteered the statement that he discussed with Farnsworth why he did not stop and that Farnsworth, who was very frightened when the witness was talking to him 'stated that he did not know why; he was frightened.' Cross-examination with respect to the first two instances of prior statements was ruled out by the court on the ground that Smith's omission to relate Farnsworth's statement did not contradict his testimony concerning it on his direct examination and because the subject matter was too remote; with respect to the statements at the preliminary hearing the court held that the evidence was barred by sec. 755, Vehicle Code.
In general a witness may not be impeached by proof that on a former hearing he omitted to state a fact unless it be shown that upon such occasion he was particularly asked to testify to the facts to which he later testified at the trial. (27 Cal.Jur. 154; People v. Casanova, 54 Cal.App. 439, 446, 202 P. 45, although there may be situations in which such omission may be admissible as being inferentially inconsistent with the later testimony or because it reflects on the witness' general credibility. With respect to the statements to the district attorney and at the Navy investigation there is no evidence or offer of proof that the witness was particularly asked what reason defendant Farnsworth gave for his failure to stop and the court's ruling that questions in relation to the omission were not admissible as impeachment was correct certainly when the many and contradictory statements made by defendant Farnsworth to Officer Smith and the relatively minor importance of the point in question in the case then being investigated are taken into consideration.
With respect to the inadmissibility of the evidence from the preliminary hearing because of the provisions of sec. 755, Vehicle Code, which prohibits the admission as evidence in a civil action of the record of a conviction for a violation of the Vehicle Code or of testimony produced at the trial terminating in such conviction, appellants argue that such provision was evidently enacted solely for the benefit of the defendants in such criminal action and that therefore it had no application when defendants expressly waived its protection, and that moreover it applied only to admissibility as evidence of facts to be proved in the civil action not to use solely for the purpose of impeachment. Although there may well be merit in the arguments we need not decide the point. The exclusion of the evidence was justified as not good impeachment on the same grounds as given before with respect to the other two occasions of omission and then it is irrelevant whether another possibly erroneous ground for sustaining the objection was given. Rancho Santa Margarita v. Vail, 11 Cal.2d 501, 564, 81 P.2d 533.
Appellants urge that it was error to refuse to give their requested instruction No. 51 on the provision of sec. 565, Vehicle Code, making it unlawful for a pedestrian intoxicated to such an extent as to create a hazard to himself or others to walk or be upon any roadway. There was evidence that blood taken from the body of the deceased contained a percentage of alcohol which indicated intoxication passing beyond the stage of exhilaration into the stage of confusion, so that there was a sufficient evidentiary basis for such instruction. However another instruction proposed by defendants was given to the effect that Brooks was to be held negligent if he was intoxicated to an extent that caused him to conduct himself otherwise than would a person of ordinary prudence. Appellants contend that the latter instruction has not the same effect as the one refused, which would require the jury to presume that the deceased was guilty of negligence by virtue of the mere fact of his intoxication to the extent specified combined with his mere presence in the highway. Although this is true, the fact that under either rule to find contributory negligence proof is required that the negligence so found proximately contributed to the causation of Brooks' death Satterlee v. Orange Glenn School Dist., 29 Cal.2d 581, 588, 177 P.2d 279, practically nullifies the distinction. Cumulation of the two instructions would lead to undesirable complexity but it will be possible to give one instruction based on the provision of the Vehicle Code, to which defendants are entitled.
Next appellants complain of the giving of plaintiffs' instruction No. 32, which added to the text of sec. 562, Vehicle Code, as to crossing at other than crosswalks, that accordingly the crossing of Brooks at the place where he was struck was not negligence as a matter of law, that he is presumed to have obeyed the law and to have yielded the right of way to the truck of defendants and that the fact that he was struck does not in itself show that he failed to yield the right of way. We find no error in the instruction. Section 562 is not a prohibition against crossing other than at intersections, Genola v. Barnett, 14 Cal.2d 217, 220, 93 P.2d 109. The stated presumption is applicable where the death of Brooks prevented plaintiffs from producing evidence as to what happened during the crossing, Smellie v. Southern Pacific Co., 212 Cal. 540, 299 P. 529; Hoppe v. Bradshaw, 42 Cal.App.2d 334, 340, 108 P.2d 947, and if the instruction taken separately might be considered to stress too strongly Brooks' lack of negligence in crossing, such would be fully compensated by several instructions given at the request of defendants concerning Brooks' duty when crossing the highway outside a crosswalk and concerning the rebuttable character of the presumption.
Neither do we find actual error in plaintiffs' instruction No. 10 to the effect that negligence of Brooks would only prevent recovery by plaintiffs if said negligence was the proximate cause of his death, not if the negligence was 'so remote as to become a condition rather than a cause or a link in the chain of causation which brought about his death.' Such language is used in some opinions in connection with the doctrines of contributory negligence and last clear chance. See Smith v. Los Angeles Ry., 105 Cal.App. 657, 663, 288 P. 690, quoted in Handley v. Lombardi, 122 Cal.App. 22, 28, 9 P.2d 867. Its theoretical character makes it unsuitable for the purpose of instruction but even with the further inappropriate addition 'The law of this State refers to 'proximate cause' and to 'remote cause" it does not misstate the law. In our case it can only apply to the doctrine of last clear chance and the circumstances contended to have existed after the first impact between the truck and Brooks. It is made superfluous by the many other and more easily understood instructions given on this subject.
Appellants urge that it was error to instruct on the doctrine of last clear chance in general and on said doctrine specially applied to the period following the first impact because this theory did not find any substantial support in the evidence. If we view the evidence in the light most favorable to plaintiff, as for this purpose we must, Bonebrake v. McCormick, 35 Cal.2d 16, 19, 215 P.2d 728, there are elements on which a theory of last clear chance could be built both with respect to the occurrence prior to the first impact and to the period thereafter. Although Farnsworth testified at the trial that Brooks when moving east from the dividing island took only a few steps into the outer lane and then turned back abruptly to the first lane to which Farnsworth had turned to pass behind him and was hit immediately thereafter, although Farnsworth swerved to the left and braked as much as he could Officer Smith testified that Farnsworth's partly conflicting admissions to him contained also other statements of what happened: that Brooks moving east from the dividing island ran across both lanes, that Farnsworth observed Brooks at the right hand (east) edge of the roadway; that from there Brooks moved out into the middle of the easterly northbound lane (slow lane); that Farnsworth blew the horn and put on some more brake; that he observed that the man was not getting out of his way, that he moved his truck over into the inside lane and that truck and Brooks came together at the line separating the two northbound lanes. There was testimony from Farnsworth himself that neither when he braked for the first time when he saw Brooks running east from the island nor the second time did he try to bring his vehicle to a stop. Notwithstanding the blowing of the horn and the noise of the large unit moving and braking, Farnsworth did not see any indication that the moving object saw or heard it or paid any attention to it. Before he first saw it moving he was going 40 to 45 miles an hour and could have stopped before he reached the moving object. On this evidence it could be held that Brooks was unaware of the approaching danger, that Farnsworth knew this and could have prevented the accident by stopping or possibly by turning back to the slow lane. Under such circumstances the continuing of the negligent lack of attention of the victim would not prevent the application of the doctrine of last clear chance. Overacker v. Key System, 99 Cal.App.2d 281, 284, 221 P.2d 754; Galbraith v. Thompson, 108 Cal.App.2d 617, 239 P.2d 468. There is also an evidentiary basis for the theory that after the first impact Brooks was carried or dragged along over a considerable distance, possibly 200 feet, whereas Farnsworth could have stopped the truck in the meantime so as to prevent all or some of the wheels at the right side of the truck and trailer from passing over the victim. The extent of the transportation can be inferred from the fact that the place where according to Father Powers he found Brooks' body was some 80 feet north of the place where Brooks, according to some of Farnsworth's statements, crossed the roadway and the place where State Highway Patrolman Johnson a little later found the body was some 200 feet north of said place of crossing. That Brooks may not have been killed by the first impact can be derived from testimony of Father Powers that when he found Brooks' body first after all the wheels of the right side of defendants' truck and trailer had passed over him he did not notice that Brooks was dead; he noticed that one of the legs was stripped of clothing and there was blood flowing down on that leg; Brooks was warm; Father Powers got down on his knees and gave conditional absolution as he had done when they found boys overseas; he had seen such boys mutilated far worse than Brooks was and still alive. That Brooks may have been carried along on the front of the truck could be inferred from the fact that Officer Smith found an imprint of cloth, a weave of cloth, on the right front fender of the truck and in the valley between the right front fender and the right side of the hood, but that searching underneath the truck he did not find any indication of the body or any part of it having been there; from Farnsworth's position in the driver's seat, he would be unable to see Brooks if Brooks were stretched in that valley. With respect to the possibility of stopping there is evidence that when the truck struck Brooks, its speed was about 15 to 20 miles an hour, the brakes still being applied full force; the lowest speed was not over 10 miles per hour which must have been at the moment when the front wheel went over Brooks as Farnsworth testified that at the moment he felt that happening he relaxed the brakes and drove away. At a speed of 15 to 20 miles per hour the empty truck and trailer could be stopped on level, dry macadam within the turn of a wheel, at a speed of 35 miles within 15 to 20 feet, according to Officer Smith. The distance between the front wheel and the next set of wheels of the truck was 17 feet, the overall length of the unit 60 feet.
Appellant also complains of other instructions given at plaintiffs' request, too long to be stated in detail, relating to the duty of care of Farnsworth after the first impact and stating that if Brooks was made helpless by the first impact he would in his helpless condition not be guilty of contributory negligence. Appellants' contention that such instruction should not have been given because of the instantaneous character of the event to which they relate seems incorrect in view of the evidence just discussed indicating the possibility of a longer transportation of Brooks' body. At any rate Farnsworth was under duty to use reasonable care not to cause additional harm of Brooks. Prosser on Torts, p. 194; Weitzman v. Nassau Electric R. Co., 33 App.Div. 585, 53 N.Y.S. 905, 909. It is also correct that Farnsworth's liability for the results of any negligence of his which may have taken place after Brooks became helpless can not be nullified by any contributory negligence of Brooks. The part of plaintiffs' instruction No. 26 which states that if the original impact made Brooks helpless 'his previous negligence, * * * terminated right then and there, that is, at the moment he became helpless' might be misunderstood to negative any influence of said previous negligence, also with respect to any earlier negligence of Farnsworth and the formulation should be corrected to avoid the possibility of such misunderstanding.
Appellants complain of the giving of an instruction modified from plaintiffs' instruction No. 48 to the effect that the conduct of Farnsworth in continuing to drive away his truck from the scene of the collision notwithstanding his awareness of having struck Brooks may be considered as a circumstance showing consciousness of responsibility for the accident and that the weight of such circumstance is for the jury. It is argued that the instruction was especially prejudicial because the court had sustained an objection to a question of Farnsworth's attorney as to his reasons for leaving.
There can be no doubt that if Farnsworth's running away from the scene of the collision may be considered as indicating his consciousness of responsibility, he is entitled to testify that there was another not incriminating reason for his running away, irrespective of whether an instruction as to that inference is specifically given or the drawing of the inference left to the jury without such instruction. The inference is a natural one and in criminal cases the giving of an instruction on flight, closely related to the one under discussion is expressly directed by § 1127c, Penal Code. See for its application in a hit-run case People v. Moody, 93 Cal.App.2d 66, 71, 208 P.2d 692. The essential error is not the giving of the instruction but the sustaining of the objection to testimony of Farnsworth intended to explain the reason for his flight. The fact pointed out by the court that such evidence would relate to Farnsworth's state of mind after the accident is no valid objection. Evidence as to his state of mind at the time of the flight is not used to infer from it his state of mind at the earlier time of the accident, but is admissible to rebut the implication of guilt from the flight itself.
With respect to the instruction attacked, consideration must be given to the fact that defendants' instruction 30 was also given to the effect that the fact that Farnsworth drove away without stopping could alone not be the basis of a verdict against defendants. The two instructions together correctly state the law.
Plaintiffs' instruction 12 given by the court contains among other things the rule that the operator of a motor vehicle must 'keep his vehicle under such control as will enable him to avoid a collision with another person using proper care and caution.' Such instruction has been justly criticised as being open to the construction of placing on the operator of a vehicle the absolute duty to avoid collisions. In a new trial its wording should be corrected, e. g., so as to read: the operator of a motor vehicle must use ordinary care to keep his vehicle under such control, etc. Anderson v. Freis, 61 Cal.App.2d 159, 165, 142 P.2d 330.
Appellants argue that many instructions, partly treated before in other respects, partly not mentioned before, related to matters of fact and invaded the province of the jury, were argumentative, repetitious and unduly emphasized the theories of plaintiffs compared to those of defendants. The instructions so attacked are too numerous and extensive to state or discuss them separately. A few general remarks must suffice. We did not find any instruction which actually stated the position of the court as to matters of fact. The instructions complained of as factual either pointed out inferences that could in general be drawn from certain facts leaving it to the jury to decide whether such facts existed and if so whether the inference should be drawn in this specific case or gave rules of law as applied to specific circumstances in case such circumstances were found to exist. Although it is often said in our authorities that it is better for courts to state rules of law in general terms than to draw the attention of the jury to particular facts by instructing on them specifically, see for instance Tower v. Humboldt Transit Co., 176 Cal. 602, 610, 169 P. 227; Stuart v. Preston, 2 Cal.App.2d 310, 322, 38 P.2d 155, nevertheless it is also pointed out that many general instructions are quite puzzling to the average juror and that application of such principles to the particular situation involved impresses itself better on his mind. Nickell v. Rosenfield, 82 Cal.App. 369, 377, 255 P. 760. Accordingly it has been held that the giving of a general instruction which covers the subject in an abstract way does not justify the refusal of a requested particular instruction correctly applying the law to a specific matter. Barnett v. Garrison, 93 Cal.App.2d 553, 558, 209 P.2d 426; 64 C.J. 890; 53 Am.Jur. 426. Hardly ever will the too specific character of an otherwise correct instruction alone be ground for reversal. It will be primarily for the trial judge to see to it that specific instructions requested do not over-emphasize one special aspect of the case, and especially that no rules or applications of rules favorable to one party are stressed to the detriment of the other party. The latter may to some extent have occurred here when the court first gave defendants' general instruction as to sudden peril, applicable to both parties (No. 9) and immediately thereafter plaintiffs' more extensive instruction No. 19 on the same subject applied solely in favor of deceased. Neither are the instructions free of undue repetition (e. g., those given at the request of plaintiffs as to the period following the first impact). The defects pointed out here should be avoided on the next trial.
The judgment is reversed.
GOODELL and DOOLING, JJ., concur. --------------- * Subsequent opinion 255 P.2d 802.