Aрpellant sued to recover damages for personal injuries, received by her as the result of a collision between her automobile, parked on its right side of an avenue, and an automobile truck owned by respondent Y. Boido, and operated, on its wrong side, by respondent John Cerrato, his employee. After trial, the jury rеturned *443 its verdict in favor of respondents. From the judgment entered thereon, she appeals, assigning as error six instructions given at respondents’ request.
The following summary of thе material testimony will suffice for a proper consideration of her criticism of these instructions. Appellant stated that she had parked her automobile, hеaded easterly, on the south side of Park View Avenue about 30 feet westerly of its southwest corner with Miriam Street and had visited a friend residing on the north side of the avenue; that, as she stepped off: the north curb, on her return to her automobile, she saw respondents’ truck 416 feet easterly of her automobile, coming westerly on its right side of the avenue, down a grade at a pretty rapid rate; that, as she got to her automobile door, she heard the screeching of a machine and saw the truck in the center of the avenue, distant 110 feet from her and 25 or 30 feet from a little girl, who was 4 feet from the northerly curb; that the truck swung out in a zigzag course, struck the front fender and spare tire in the fenderwell of her automobile and overturned, striking her in the back and skidding 27 or 30 feet past the rear of her automobile. This girl’s mother, called by appеllant, testified that her child had taken two or three steps into the avenue from its north curb when she saw the truck approaching at a speed of 30 to 35 miles per hоur; that, in response to her command, the child turned back; that the driver of the truck applied his brakes, swerved first to his left, as if to turn southerly into Miriam Street, and then to his right, when he struck the automobile and overturned. Appellant’s second witness said that he heard a scream and, upon looking east, saw the truck traveling at a speed of 25 tо 30 miles per hour, on its right side 5 or 6 feet from the curb and the child, apparently standing, 10 or 15 west of the right front of the truck; that the driver turned suddenly to his left, going as if to turn toward the southwest сorner and then, to his right, hitting the front end of the automobile and upsetting 27 feet beyond. Respondent Cerrato testified that, intending to turn south into Miriam Street, he was driving west on his right side of Park View Avenue, 5 or 6 feet from its north curb, at a speed of 15 miles per hour; that, due to the steep grade, he had his foot on the brake; that he first saw the little girl standing on the nоrth curb; that, suddenly, when he was *444 10 or 15 feet from her, she ran in front of his truck; that, then, he took his foot off of the brake, .stepped on the gas, turned to his left, missed the child, tried to straighten his truck, swerved in a semi-circle and tipped over; that he did not feel the impact of the collision.
The court instructed the jury “that the mere happening of an аccident in which plaintiff is alleged to have been damaged raises no presumption of negligence on the part of the defendant, John Cerrato”. Appellant correctly contends that the instruction advised the jury that the doctrine of
res ipsa loquitur
was inapplicable and therefore prohibited it from considering, as evidence, an inference of negligence from the happening of the accident. The doctrine would have been applicable, if the evidence had merely shown that the truck, traveling on its wrong side, had struck the automobile, parked on its right side and such facts would have raised an inference that the truck driver was negligent.
(Bauhofer
v.
Crawford,
Appellant complains of three instructions stating, in abstract terms, the rule as to the amount of care required, when acting in a sudden emergency or peril, claiming that the first placed upon her the burden of proving that the operation of the truсk on its wrong side was inexcusable and the other two denied the jury the right of considering whether the driver’s failure to have his truck under control was the proximate cause of the collision. She makes no claim either that the rule was incorrectly stated or that it was not applicable under the driver’s testimony. Bach of
*445
these instructions contained the qualification that the rule could not be invoked by a person who was negligent. Appellant did not request nor did the court give any instruction as to the operator’s duty to drive on his right or to keep his machine under control. These instructions did not specifically treat of these duties but merely, in general terms, advised the jury that what might be negligent under ordinary conditions could be excused by a sudden emergency. The effect of these instructions, therefore, was not as appellant claims. In absence of a request, she cannot now complain that the instructions were not as full as she now desires.
(Comstock
v.
Morse,
At respondents’ request the jury was instructed that appellаnt could not recover for damages, caused by an unavoidable accident, which was defined as one which occurs despite the exercise of reasonable care upon the part of all concerned to avoid it. Appellant argues that, since the evidence presented the sole issue of respondents’ negligence and not of an unavoidable accident, this instruction erroneously invited the jury to speculate upon matters not in issue. But, since appellant requested an instruction, which was given, stating the converse, she did, at the trial, consider this issue raised by the evidence. The driver’s testimony, which, if believed, excused his acts, negligent under ordinary conditions, because of the sudden peril, raised this issue, for if he was not negligent, the accident was unavoidable.
(Raymond
v.
Hill,
The court instructed the jury as follows: “There are no degrees of negligence or contributory negligence in
*446
this ease. In other words, if you find that the plaintiff was guilty of any contributory negligenсe,
however slight,
which proximately contributed to cause the injury and damage complained of, you are not to weigh and balance such contributory negligence agаinst any negligence on the part of the defendant John Cerrato, but it is your duty, if you find that there was any contributory negligence on the part of the plaintiff which proximately caused her injuries to return your verdict in favor of the defendants.” (Italics ours.) By unduly emphasizing and transposing the adjective “slight” appellant reasons that the court еrroneously told the jury that slight negligence, that is, the omission to exercise great or extraordinary care, would bar her recovery. The instruction as a whole, particularly the first sentence, clearly negatives any such strained construction. The same argument as to the effect of the use of the adjective “slight” in a similar instructiоn was demonstrated to be untenable in the well-reasoned opinion of
Metcalfe
v.
Pacific Electric Ry. Co.,
The judgment is affirmed.
Tyler, P. J., and Cashin, J., concurred.
A petition for a rehearing of this cause was denied by the District Cоurt of Appeal on November 17, 1934, and an application by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on December 17, 1934.