212 P. 394 | Cal. Ct. App. | 1922
Harry Hutchinson was killed in an automobile accident and the plaintiff, as administrator, commenced *2 the above-entitled action to recover damages. A judgment was awarded the plaintiff in the trial court; the defendant made a motion for a new trial, its motion was denied, and the defendant has appealed under section 953a of the Code of Civil Procedure.
In its answer to the plaintiff's complaint the defendant denied many of the allegations contained in the complaint and then it set forth an affirmative defense, the contributory negligence of plaintiff's decedent.
Early in the day on the 20th of April, 1919, plaintiff's decedent, Harry Hutchinson, and his friend, Joe Russell, left their homes at Clovis and went to Firebaugh. While at that place two Mexican boys engaged Hutchinson to drive the party from Firebaugh north to a ranch known as Holland Farm. They started before dark and while it was yet light they passed a point in the road where an excavation was being made for the purpose of inserting a concrete culvert. The excavation was two miles from Firebaugh and extended entirely across the road. There was a traveled space in about the middle of the road. From each side balisters, 2x4, had been put up, on 2x4 posts, leading from the property line out to the traveled space just mentioned. The traveled space was very rough but could be traveled if one exercised care, and Hutchinson drove slowly at about ten miles per hour over the spot. As they went out they observed common lanterns hanging to the balisters but the lanterns were not lighted. After passing the excavation the party went on five miles farther to the Holland Farm, where the two Mexican boys got out of the car, and then Hutchinson and Russell started to return to Firebaugh, where they expected to attend a dance. Russell testified that as they returned on the road they were constantly looking for the place where the lanterns and excavation had been seen. The night was dark and there was no moonlight. They were riding in a Ford car which was equipped with common Ford lights, and Hutchinson drove at about twenty miles an hour. The witness Russell was the only eye-witness to the accident. Some other persons came after the accident had happened but they did not see the accident. He testified that they did not see the excavation until they were within ten or twelve feet of it; that the lights of a Ford shine down a straight road like that about twenty or *3 thirty feet, and it would be all darkness beyond that. He further testified that the lanterns on the balisters were not lighted. As the car hit in the excavation it was turned over to the right; Hutchinson was killed instantly and the witness was considerably dazed. There was some testimony that the decedent and Russell had taken some drinks of intoxicating liquor during the day. All of the foregoing testimony was developed in the presentation of the case for the plaintiff.
At the end of the plaintiff's case the defendant moved the court to grant a motion for a nonsuit and specified, as a ground of its motion, the contributory negligence of the plaintiff's decedent.
The motion was denied and the defendant thereupon introduced testimony on some other matters connected with other branches of the case. But no testimony was introduced by the defendant which conflicts with the testimony quoted above.
The defendant's theory concerning contributory negligence covered three separate propositions: (1) that the decedent was under the influence of intoxicating liquor at the time of the accident, and that his intoxication proximately contributed to the accident; (2) that, well knowing the dangerous condition of the road, the decedent negligently drove his car and thus proximately contributed to the accident; and (3) that at the time of the accident the decedent was guilty of contributory negligence in driving after dark in a car which was equipped with lights which did not comply with the provisions of the Motor Vehicle Act.
Relative to the first element of the defendant's case, evidence was introduced by the defendant on the subject of intoxication. Thereafter the trial court instructed the jury giving certain instructions which are not numbered, but which we have numbered by the use of the Roman numbers.
By its verdict the jury found against the defendant on the issue of intoxication, and no question is presented in this appeal thereon.
[1] Contending that the decedent encountered a known danger in a reckless manner and cannot recover, the appellant cites and relies on such authorities as Buckingham v.Commary-Peterson Co.,
At the time of the accident it was provided by law (Stats. 1917, pp. 382, 397), "the headlights of all motor vehicles upon the highway shall give sufficient light to reveal any person, vehicle, or substantial object on the road directly ahead of such motor vehicle for a distance of at least 150 feet, . . ." It is the settled rule in this state that the violator of a statute is guilty of negligence per se if such violation contributes proximately to the accident. The portions of the record relied upon by appellant sustaining the attack based on the statute above quoted are to be found in the testimony given by the witness Russell, the only witness who testified on the subject. He was riding with deceased at the time of the accident. His testimony on these matters was as follows:
"Q. And you know that the lights were turned on before you got to the warehouse? A. Yes, sir. Q. And the car was equipped with electric lights, of course? A. Yes, common Ford lights. Q. Now, then, you say as you were riding along you were looking for these lights on this place? A. *5 Yes, sir. Q. And you knew the place was there? A. Yes, sir, I knew the place was there. Q. And so did Mr. Hutchinson? A. Yes, sir. Q. How far do the lights on a Ford, down a straight road like that, shine? A. About 20 or 30 feet. Q. How is that? A. About 30 feet. Q. It would be all darkness beyond that? A. Yes, sir. Q. That is your judgment. How fast were you traveling down that piece of road? A. About 20 miles an hour. Q. Did you have any speedometer on your car? A. No, sir."
The respondent's reply to this attack by the appellant is to the effect that when the witness Russell testified that the lights shone twenty or thirty feet, and that the car was going twenty miles an hour, that he was giving expert evidence and that expert evidence is not necessarily binding on the jury. It is true that in some instances expert evidence is not binding on the jury. (McLean v. Crow,
From what we have stated above it becomes very clear that the rights of the defendant in the instant case hung wholly upon the second and third theories concerning contributory negligence. That the condition of the record so far as the evidence is concerned, was shown and the foregoing attacks were made by the respondent in making its *6 motion for a nonsuit. However, the respondent did not offer any additional testimony, nor did he seek to cure any of the foregoing defects. Neither were the defects cured by any testimony thereafter introduced by the appellant. When the record stood in that form and as the defendant closed its case, the defendant prepared and asked the court to give instructions which the court modified and then gave as follows:
(Trial court crossed out "proximately contributed to" and inserted parenthesis.)
(Trial court inserted parenthesis.)
It is not claimed that instructions III, IV and V in the form requested were improper in any respect, and no legal objection has been called to our attention. In the form requested they were instructions on contributory negligence and concretely applied the law to the case on trial. In the modified form the instructions were not on contributory negligence, but became instructions on the subject of self-inflicted death. The respondent suggests that as all instructions are to be read together that instruction number I helps out the meaning of instructions III, IV and V. We do not agree with the suggestion. Instructions numbers I, II and III can be said to assist each other because all deal with contributory negligence. But they do not assist III, IV and V, which deal with self-inflicted injuries. As the jury was instructed it might well assume, and by reason of its verdict it doubtlessly did assume, that intoxication was the only element of contributory negligence which it was called upon to determine. To have a fair trial the defendant was entitled to have the jury fully and fairly instructed on all of the issues of and concerning contributory negligence, and it prepared and requested such instructions. In legal effect, some of those instructions were refused.
The judgment should be reversed, and it is so ordered.
Nourse, J., concurred. *8