*1 OF REPORTS CASES DETERMINED IN DISTRICT COURTS OF APPEAL THE
OF THE OF STATE CALIFORNIA. January Appellate District, First Division One. No. 3655.
[Civ. BUS WHITE al., Respondents, et D. C. GARBAUGH (a Appellant. Corporation), LINE [1] [2] tained Negligence—-Collision said Action into, while Id.—Contributory sets neous stage and at which was plea fect that intersecting boulevard, Jury.—In forth boulevard, negligence, by plaintiff when a machine which accident, Instruction.—Where contributory of fact if Damages—Right across said boulevard position upon whether or boulevard, an particular traveling, upon action for Negligencе—Pleading to cross and turn proceeding plaintiff cannot negligence, which the defendant jury. not after negligent detail it, contributed Intersection-—Personal the defendant’s an of Plaintiff automobile justified requested instruction to the ef observing recover, “in had the specific advance of any he was even Specific to stage proceeding is and the personal other answer in acts relies proceeding Proceed—Question properly refused. apрroach to driving particular,” Acts rate of the left injuries small Injuries— such action support upon — degree Erro along is into sus run his- Id.—Last tion embodying the Clear such Chance—Duty an action believes Request itself entitled last clear Instruction.—If chance, it to an instruc (1) App.—1 51 Cal. Cabbatjgh White Bus law and within Id.—Eight make his collision, pendant—Presumption.—Where stopping his dence.—Where Id.—Discovery fendant’s presume that after the limits of both Ms which would not perform own Cross in such an action op Danger—Last the driver of car request could, by placed by plaintiff Intersection—Obedience or “last clear be accelerating intersecting in objectionable discovered the giving premises. action of Clear action on chanсe” is not plaintiff and is no evidence speed, Chance duty dangerous the driver stage would instruction was at have avoided op in to Avoid—Evi ^ part applicable.' had Law grounds. *2 position tending of the de all in either obey by times De- in
APPEAL Superiоr judgment from a Court of Angeles Judge. County. McCormick, Los Af- Paul J. firmed.
The are in opinion facts of the court. Appellant. Duke Stone E. for Respondents. B. Drake appeal RICHARDS, This is J. judgment from a in plaintiffs brought favor by actions them to re injuries they covеr each received in they between the automobile of which a collision were occupants by operated and a motor-bus one of the de employees. Each fendant’s commenced separate against defendant, agree order of the court the two ment and actions were con together. tried solidated charged complaint in The defendant, each case “the agents through charge and servants thereof, so operatеd one negligently pas- auto-buses senger stages that collided same injured automobile, and he was as hereinafter set out.” its answer each case specifically defendant denied pleaded allegation, in addition thereto this note, 1 Ann. crossings, 5. Law of the road as to Cas. 164. Cabbaugh Jan. Bus Line. negli- guilty separate defense that
gence specially pleaded particulars in a number of of said collision. connection with and the time at jury, which cases tried consolidated before were Carbaugh rendered D. plaintiff' a verdict favor of the C. for $1,775, and in Alice favor of the $6,000. sum combined The amount of these trial, was, upon verdicts motion a new reduced thereupon plaintiffs’ $2,500, consent extent judgment denied, reduced motion judgment from which favor, amount entered prosecutes appeal. be summarized as follows: may of this case facts 22, 1919, on June collision in occurred with Pomona Mission Drive intersection of San Gabriel Angeles, of Cali- county Boulevard Los state west; the San east fornia. Pomona Boulevard runs northwesterly general Gabriel Mission Drive runs *3 southeasterly direction, intersects, and but does and angle approximately cross, Pomona Boulevard of at degrees. forty-five plaintiffs’ car was a five-passengeri being just “Saxon,” prior and to said collision was plaintiff Carbaugh D. C. on the Mission' driven the approaching Boulevard, Pomona into which he in- Drive driving turning As tended and thence to the east. said" driving car, аpproached his the intersection plaintiff, of driving right streets, was on the he side of two these sitting car, of left side his road and himself, persons of whom was the five one were besides Carbaugh. The car was driven at the plaintiff Alice hour, miles an and when within fifteen about rate of point of intersection its driver fifty feet of the about .motor-stage the defendant’s and saw the east looked along that direction the boulevard. approaching from stage approximately it was first observed When he intersection, appeared and to be travel- 250 from feet thirty thirty-five from miles an hour. ing rate of at the approached Carbaugh, intersection, he as plaintiff ten his car speed of twelve miles reduced stage сontinually in keeping view. When hour, point stage ap- intersection of was at arrived away, appeared coming to be 150 feet and proximately 4 Cal. Bus along or near traveling the center of the boulevard at the rate thirty-five оf about an hour. miles Plaintiff Carbaugh, according testimony to his of those put who were with him in car, hand, his left blew out proceeded turning his horn and boulevard, to cross the to the eastward as he reached its center.
stage speed continuеd with undiminished until reached point plaintiff’s car, within a few feet when it suddenly swerved left it at a and collided with point which, according testimony to the of the witnesses, was left of center of the boulevard. plaintiffs’ injuries of this were the collision. result The first contention herein is that plaintiff Carbaugh, C.D. as the auto driver mobile, guilty was of contributory as a matter entering upon of law in to cross said observing after stage boulevard approach point ing its of intersection the Mission This Drive. absolutely сontention is without merit. The D. C. approached Carbaugh, the intersection of these streets, driving two side Mis speed permitted by Drive had, sion at a, law, rate provisions Motor Act, under Vehicle across Pomona Boulevard in of the de advance stage approaching fendant’s thereon. Whether or not observing approach stage position upon and its rate which it was traveling, justified proceeding the said way across said boulevard in advance clearly fact jury. Co., (Zibbell Pac. v. Southern Pac. Co., Valley etc. San 513]; Scott v. Bernardino Bonding Commonwealth Co. etc. 604, [93 *4 573, App. Ry. Co., Pac. Elec. [184 Pacific App. 661, ; Clemons, 46 Pac. Baker Bohinsonv. 203] Stage Co., 73]:) 48 Cal. Auto Western support cited authorities The do same, contention not sustain above-mentioned Ms materially differ each said cases the facts since bar. case at of the those appellant’s next is that contention the trial
The court give certain refusing to erred defеndant’s re Jan. Bus quested instructions. first of these instructions to has is reference our attention directed re plaintiff. contributory negligence of the jected you “I instruct instruction reads follows: you was though this the defendant that believe case even not inquiry be whether or your should negligent, next negligent or and whether was himself slightly, any extent negligence contributed, or to even you accident; to if that of the believe the cause failing ordinary either negligent, was to use by failing stop care as into to he drove said boulevard or perilous if if position, automobile he realized his or negligent any negli was particular, other and that said gence or of it degree even in small to contributed accident, plaintiffs recover, then of the can neither your verdict must be the defendant.” foregoing is vice instruction discovered when compared portion it is with that defendant’s answer plea regard which contains his affirmative with to con- tributory plaintiff. pleading of the His in that rеgard specific, setting particular forth is detail specific alleged negligence acts above-quoted instruction, In the the defendant relies. how- ever, reciting specific negligent acts, certain these charge have jury defendant seeks to the court plaintiff] negligent that “if he in any other [said particular, negligence, and that it, any of con- degree in a small even the accident, tributed then your recover, can neither verdict must portion defendant.” This be instructiоn requires clearly contrary authority law that so uphold refusing give court in it. lant deserving next and attention only is its other contention contention of the the trial appel refusing give an court in" error instruction embodying the of “last clear only chance.” The which, discover, so far as we can instruction the above-quoted instruction, asked seen, the trial which, have court was as we rea refusing give. justified If sons defendant be to an instruction entitled lieved itself em- case *5 Cakbaugh Cal. 6 White Bus Line. v. bodying chance, it was the last clear of the duty upon request that giving an instruction the objectionable which would not be grounds, in our view of case no application room for the clear the “last of the doctrine evidencе, chance” to in there is not the facts since plain tending scintilla after evidence that dangerous position tiff D. C. discovered the driver placed by action of the speed stage failing to reduce its right pass or turn on behind the boulevаrd so as part, his car, he could accelerating speed, stopping either his car own have avoided the collision.
all duty times within limits both his own boulevard; to make his across said he knowledge knowledge had or means of that defend stаge under control, ant’s was not or could have been traveling slowed down from the at which it was permit first when observed so as to safety. his make boulevard Being rights strictly within he had presume driver of the would perform premises. obey law arid Had clear so it is collision done would governing respective law rights occurred. The not have parties under circumstances similar to those of the case at bar is in Whitelaw fully McGilliard, v. 179 349, Johnson, Harris v. 1918E, 560, 1917C, 477, Cas. L. R. A. 161 Pac. [Ann. Clemons, supra, ; Robinson and Baker v. Western 1155] supra. Stage Co., Auto urged points
There are no other worthy separate deem consideration. we The instruc- tions court issues tendered to jury properly subject were full and fair and are not appellant’s criticism. judgment is affirmed. Seawell, J., pro tern., P.
Kerrigan, J., concurred. Orange. County Jan. 1921.] Birch court, supreme petition A in the heard to have the canse appeal, was denied judgment district court supreme 3, 1921. on March court All the concurred. Justices *6 January Apрellate District, Division One. First No. 3626.
[Civ. Appellants, etc., al., Copartners, A. OTIS BIRCH et ORANGE, Respondent. COUNTY OF Prior Actions—Bias ward the Disqualification prior verified tendency tion, torney, expression copartnership showing during or since the said actions gally disqualifiеd judge, who was act demurrers shown which had actions represented certain of the that one of the plaintiff, were sustained without shown to to have fraud and deceit procured brought by against oil formerly from hostility lands, who was been certain of the Judge—Counsel have been prior time complaints therein, hearing owned such purchase committed, or county or even litigation ceased Prejudice.—A the defendant paid minority such made means of which of their leave tо under plaintiffs in unfriendliness recover prior oil fob stockholders lands, declaration, statement, or the defendant protest, upon actions Opposing stock, taxes assessed amend, and that having the to recover the members of judgе is not the defendant to which actions. on his judge practicing at Litigants actions slightest part corpora against before, actions certain single mere to le a Superior Court APPEAL order n Orange County denying change place motion' Judge. Affirmed. Williams, of trial. R. Y. opinion in the court.
The facts are Appellants. & Shoemaker Woodruff Attorney, W. F. Menton West, District A. L. Attorneys, Respond- Nelson, Deputy District Alex. P. ent.