MORTENSEN v. FAIRBANKS ET AL

Reset A A Font size: Print

District Court of Appeal, Second District, Division 2, California.

MORTENSEN v. FAIRBANKS ET AL.*

Civ. 8101.

Decided: January 24, 1934

Paul Nourse and Forrest A. Betts, both of Los Angeles, for appellants. Wheeler & Wackerbarth and Henry E. Carter, all of Los Angeles, for respondent.

Upon the trial of an alleged cause for damages arising from the meeting of automobiles at an intersection of thoroughfares in the city of Los Angeles, a verdict and judgment were awarded the plaintiff, from which the defendants appealed.

There was evidence from which the jury could have concluded that the plaintiff first entered a five–point intersection, and that the defendants drove from a distance to the rear and collided with the car of the plaintiff without lessening speed. Two instructions given by the trial court are questioned. One directed that, if the jury should find from the evidence that the plaintiff entered the intersection in a lawful manner and at a lawful speed, and after so entering he observed for the first time that he was placed in a position of apparent danger by the defendants and as a result of the latter driving in an unlawful manner at an unlawful rate of speed, and if they should find that in an effort to extricate himself from such danger the plaintiff failed to act in such a manner as a careful and prudent person would have done under the circumstances, then he was not negligent or guilty of contributory negligence in driving ahead in an effort to get out of the path of the car driven by the defendants. It is asserted that by this the jury were told that under certain circumstances the plaintiff was not required to exercise reasonable care, and that the last clause took from the jury the determination of a question of fact. It is not clear from the appellants' argument as to how by an instruction that, if the plaintiff had failed in a position of danger to act as a careful and prudent person would have done, it was error to instruct also that he would not be negligent in electing between alternatives for his safety thereafter, or that the jury would be required to conclude that he need not exercise reasonable care. The definition and application of the rule as to the care required of a reasonable and prudent person under like circumstances appeared at least nine times in the instructions. By their verdict adversely to the defendants' contentions it must be assumed that the jury determined that the plaintiff had not failed to act in such manner as a careful and prudent person would have acted under like circumstances. Since they did not find that the “plaintiff failed to act in such manner as a careful and prudent person would have done under the circumstances,” the hypothesis for plaintiff's argument is absent, and the fact, if assumed in the last clause of the instruction, becomes immaterial. Carefully reviewing the facts of the case and the law applicable thereto, the jury were also instructed that one first entering an intersection may assume that another some distance away, whose duty it is to yield the right of way, will slacken his speed and permit the first car to proceed, and that they might so find if such were found to be the case. This is criticized as taking from the jury the question whether or not the plaintiff was negligent in attempting to cross in view of the facts assumed by the court. Citations of instructions ignoring the question of contributory negligence and without supporting instructions tending to cure such defect do not require the conclusion contended for. No isolated phase of the case was here left to stand alone in the full and complete instructions given upon negligence or contributory negligence, as was said of the cases cited. And the jury were plainly instructed that they were “not to single out a certain sentence, or an individual instruction, but you are to consider all of the instructions together and as a whole, and you are to harmonize them so far as it is possible for you to do.” This has been held to be the rule, and the instructions cannot be said to have been insufficient in this respect. Henderson v. Los Angeles Traction Co., 150 Cal. 689, 89 P. 976. This being true, the jury cannot be assumed to have rendered a verdict in disregard of the instructions upon the question of care required of each of the parties. “A person suddenly confronted with an unexpected danger, without any fault on his part, is only required to use such means for avoiding the danger as would be used by a person of ordinary prudence, and he is not held to that strict accountability which would require that the course chosen be the most judicious one.” Carnahan v. Motor Transit Co., 65 Cal. App. 402, 224 P. 143, 146. “The plaintiff in an effort to avoid the threatened collision speeded up his machine and turned at an angle to the left. That he cannot be held as a matter of law guilty of negligence in doing this is clear from the well–established rule that one suddenly confronted with an unexpected danger may use such means for avoiding the danger as would appeal to a person of ordinary prudence in a like situation without being held to strict accountability as to whether the course chosen is the most judicious or not. Schneider v. Market St. Ry., 134 Cal. 482, 490, 66 P. 734.” McPhee v. Lavin, 183 Cal. 264, 191 P. 23, 24. Instructions must be read as a whole, and considered in connection with each other. If, when so read, they harmonize and fairly state the law, a reversal may not be had because an isolated phrase or separate instruction does not contain all of the conditions and limitations to be gathered from the whole charge. Dolan v. Sierra Ry. Co., 135 Cal. 435, 67 P. 686. The rule was recognized and applied by this court in denying a petition for a rehearing in Hellman v. Los Angeles Ry. Corp. (Cal. App.) 28 P.(2d) 384, recently decided.

The judgment is affirmed.

CRAIG, Justice.

We concur: STEPHENS, P. J.; ARCHBALD, Justice pro tem.