
    [Civ. No. 31237.
    Second Dist., Div. One.
    Dec. 22, 1967.]
    JOHN J. McHALE et al., Plaintiffs and Appellants, v. WELTON TOLLET HALL, Defendant and Respondent.
    
      Heily & Blase, DeWitt D. Blase, William L. Boyes and Edward L. Lascher for Plaintiffs and Appellants.
    Halde & Battin and Henry E. Kappler for Defendant and Respondent.
   FOURT, J.

This is an appeal from a judgment in favor of defendant in a rear-end vehicle collision case. John and Mary E. McHale, husband and wife, were the parents of Bridget, who was about ten (10) years of age at the time of the collision in question. Each of the three brought an action for damages resulting from the accident hereinafter described. In a jury trial a verdict for defendant was returned and this appeal followed.

A résumé of some of the facts is as follows:

On December 16, 1962, at about 1:30 p.m. it was starting to rain a little as Mrs. McHale was driving a Volkswagen car, ordinarily operated by her husband, east on Las Posas Road in Ventura County. A Mr. Gunner, whom she had picked up a short time before and whom she was taking home, occupied the front seat to the right of the driver of the car. Three of Mrs. McHale’s children, including Bridget (one of the plaintiffs), occupied the rear seat of the ear. Mr. Gunner resided on Loma Drive (which intersects with Las Posas Road) to the north of Las Posas Road. It was therefore necessary for Mrs. McHale to make a left turn off of Las Posas Road onto Loma Drive. The first intersection west of Loma Drive is Beverly Street, which forms a “T” intersection with Las Posas Road. The distance between Loma Drive and Beverly Street was in dispute, the testimony ranging in estimates from 300 to 525 feet.

When driving easterly on Las Posas Road, as Mrs. McHale and defendant were doing at the time in question, cars approaching the intersection of Beverly Street and Las Posas Road are confronted with a rise in Las Posas Road which reaches its peak at or near the intersection of Beverly Street and Las Posas Road and thereafter Las Posas Road descends gradually to the intersection with Loma Drive and beyond where it levels out farther east. The exact location of the rise was in dispute.

The testimony with reference to the speeds of the respective cars was in dispute. Mrs. McHale claimed that she passed the crest of the hill traveling at 15 to 20 miles per hour and then gradually came to a stop, or near stop, at Loma Drive. She did state to the police that she was going 5 miles per hour at about the time of the impact. There is no dispute, however, that she gave no hand signal of her intention to turn to the left off of Las Posas Road and onto Loma Drive. She acknowledged that the left directional blinker on the Volkswagen was out of order and that her husband had told her so. Admittedly, she gave no hand signal for an intended stop. A police officer tested the brake light and found the left light not to be working. The Volkswagen had bumper guards of such construction that at least one-fourth of the area of the stop light was obscured. Further, considering the configuration of Las Posas Road, a brake light on the Volkswagen could not be seen, even if in working order, if one were 200 feet, or more, westerly from the intersection of Las Posas Road and Loma Drive.

At the top of the crest of the road, defendant had attained a speed of about 45 to 50 miles per hour, which was within the speed limits. Defendant did not immediately see Mrs. McHale's car when he reached the crest of the road but he did see her a little later. When he saw her, she appeared to be about 100 feet from the Loma Drive intersection. Seeing her, he took his foot off the accelerator of his car and slowed down to about 40 miles per hour. When he was about 125 feet away from her, realizing then for the first time that she intended to make a left turn, he applied his brakes and laid down 78 feet of locked 4-wheel skidmarks. He was unable to bring his car to a complete stop. He estimated that he was going about 10 miles per hour when the left front of his Ford car collided with the right rear of the Volkswagen.

The jury rendered a verdict in favor of defendant. Plaintiffs made a motion for a new trial, which the trial judge denied. We set forth herein in large part his opinion with reference to the motion.

Appellants now assert that the appeal must be evaluated upon the basis of negligence, alone, disregarding any possible issue of contributory negligence, that the court erred in instructing the jury on the doctrine of imminent peril and that it was error to receive into evidence certain motion pictures. We have concluded that there is no merit to any of the contentions.

The jurors were properly instructed that they were to determine the case of each plaintiff separately. Clearly the judgment against John J. McHale and Mrs. McHale is sustainable upon the grounds, or basis, of their own contributory negligence.

John McHale knew that the left directional blinker of the Volkswagen was not in operating condition. Mrs. McHale knew of the poor mechanical condition of the Volkswagen car, the McHales undoubtedly were aware of the fact that the tail light and stop light of the Volkswagen car were partially obscured by the bumper guards on the rear bumper, Mrs. McHale knew of her intention to turn left at the intersection of Las Posas Road and Loma Drive and downshifted the gears from fourth to third to second to first as she approached the intersection but did not recall when she used her brakes in slowing the car, and she affirmatively testified that at no time did she give a hand signal for either slowing down or a left turn.

The verdict can be sustained against Bridget McHale, the minor passenger, on at least two theories.

The jury could have found under the evidence that the conduct of Mrs. McHale was the sole cause of the happening of the accident. In other words, the jury could well have found that the collision would not have occurred had Hall been given any adequate warning by way of a proper hand signal by Mrs. McHale indicating her intention to slow down the Volkswagen and to turn her vehicle to the left on Loma Drive prior to the time that she arrived at the point where the collision occurred. Plaintiffs’ own expert witness testified that had Hall been given prior notice of Mrs. McHale’s intention, he would have had ample time within which to react. Had Hall received or been given prior notice of what Mrs. McHale intended, he could have applied his brakes sooner than he did, or, as plaintiffs’ attorney argued, Hall could have swerved and thus avoided the Volkswagen. Furthermore, the jury could have determined that Bridget did not sustain any injuries of any consequence or for which damages could be awarded. One occupant of the ear had no feeling of impact. Bridget did not testify and the only testimony in the record with reference to her alleged damages was by a physician who said that he had seen Bridget on the day when he made a first visit to Mrs. McHale, that Bridget had multiple bruises and contusions and he thought that he had suggested that Bridget remain out of school for the rest of that week, that Bridget took some aspirin and there were no other complaints. The jury could have disbelieved the doctor and returned their verdict of no damages. (See Chaparkas v. Webb, 178 Cal.App.2d 257 [2 Cal.Rptr. 250] ; Demangos v. Cannon, 187 Cal.App.2d 624 [10 Cal.Rptr. 24] ; Gordon v. J & L Machinery Services Co., 213 Cal.App.2d 711 [29 Cal. Rptr. 263].)

Furthermore, the jury could have found from the evidence that Hall was in no respect guilty of negligence. True it is that this was a rear-end collision situation and the doctrine of res ipsa loquitur applies in such cases; the jury in this case was in fact instructed on the doctrine and in this regard the jury could well have concluded that Hall was not negligent. (See Elford v. Hiltabrand, 63 Cal.App.2d 65, 74 [146 P.2d 510]; Donahue v. Mazzoli, 27 Cal.App.2d 102, 105-106 [80 P.2d 743]; Witt v. Jackson, 57 Cal.2d 57 [17 Cal. Rptr. 369, 366 P.2d 641]; Burke v. Bloom,, 187 Cal.App.2d 155 [9 Cal.Rptr. 563]; Clendenin v. Benson, 117 Cal.App. 674 [4 P.2d 616]; Coppock v. Pacific Gas & Elec. Co., 137 Cal.App. 80 [30 P.2d 549]; Davis v. Ewen, 148 Cal.App.2d 410 [306 P.2d 908] ; Demangos v. Cannon, supra, 187 Cal. App.2d 624; Elliot v. Jensen, 187 Cal.App.2d 389 [9 Cal. Rptr. 642] ; Fletcher v. Pierceall, 146 Cal.App.2d 859 [304 P.2d 770]; Fueste v. Johnson, 207 Cal.App.2d 790 [24 Cal. Rptr. 827] ; Guttman v. Civet, 161 Cal.App.2d 816 [327 P.2d 232].)

In other words, when one automobile runs into the rear end of another automobile, negligence is a question of fact and not of law. (See Kralyevich v. Magrini, 172 Cal.App.2d 784, 792 [342 P.2d 903].)

With reference to the instructing of the jury on the doctrine of imminent peril, it is to be remembered that each party is entitled to instructions upon his theory of the case in the event there is any evidence to support such an instruction. Instructions, of course, may be based upon reasonable inferences from the evidence. (See Reynolds v. Struble, 128 Cal.App. 716 [18 P.2d 690] ; Apodaca v. Haworth, 206 Cal. App.2d 209 [23 Cal.Rptr. 461].)

In the ordinary case it is a question of fact whether there exists a situation of imminent peril. (See Leo v. Dun-ham, 41 Cal.2d 712 [264 P.2d 1] ; Phillips v. Treiman, 249 Cal.App.2d 33, 37 [57 Cal.Rptr. 37].) There was ample evidence upon which to base such an instruction.

Lastly, defendant at the trial showed motion pictures of ears proceeding on Las Posas Road in an obvious effort to support the testimony of other witnesses as to distances and what could be observed from a car in a position similar to that of Hall. The objection which was made in the first instance was for all intents withdrawn, for after appellants’ attorney took the witness who was to show the pictures on voir dire examination, counsel said, “All right. Show the movies.” There was no abuse of discretion by the judge in permitting the motion pictures to be shown under the circumstances of this case.

The judgment against each and all of the plaintiffs, and in favor of the defendant, is affirmed.

Wood, P. J., and Lillie, J., concurred.  