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

HALTER v. MALONE et al.*

Civ. 10468.

Decided: November 27, 1935

Harry D. Parker and Raymond G. Stanbury, both of Los Angeles, for appellant Malone. David D. Stuart, Finlayson, Bennett & Morrow and Henry L. Knoop, all of Los Angeles, for appellant Starling. Elbert E. Hensley, of Los Angeles, for respondent.

Plaintiff recovered judgment after trial by jury against both defendants Malone and Starling, and from this judgment both defendants have appealed. The judgment is based upon the implied finding of the jury that defendant Malone was guilty of negligence and defendant Starling was guilty of willful misconduct.

Plaintiff was one of three guests riding in the automobile of defendant Starling as it traveled south along Fremont avenue in the city of Alhambra about midday of March 31, 1934. Defendant Malone drove a truck from a private driveway onto Fremont avenue, and the Starling car passed behind the truck and crashed into an embankment, resulting in injuries to plaintiff. There was a sharp conflict in the testimony. Each defendant separately argues that the evidence is insufficient to sustain the verdict as to him. The jury returned its verdict after being fairly instructed by the court. The record discloses substantial evidence to sustain the verdict as to each defendant, and such being the case, the appellate court cannot disturb the implied findings of the jury. For the reasons given in Koeberle v. Hotchkiss (Cal. App.) 48 P.(2d) 104, the evidence is not set forth in detail.

Defendant Starling argues that as against him plaintiff must rest his case solely upon the evidence presented by plaintiff and that he may not take advantage of the testimony presented by defendant Malone and his witnesses in order to uphold the verdict. He points out part of the testimony of the plaintiff himself, particularly on the subject of the rate of speed of the Starling car, and argues that he is foreclosed from asking the jury to base a verdict upon the estimates of speed given by other witnesses. It is sufficient to say that he cannot avail himself of the point now, since he did not request the trial court to give to the jury appropriate instructions on the subject. Moreover, there is sufficient evidence in the record to sustain the verdict upon the testimony which is not subject to the criticism mentioned.

Defendant Starling contends that the court erred in submitting to the jury instructions involving the kind of territory traversed by Fremont avenue. Starling is not in a position to avail himself of this alleged error, since he also submitted instructions to the court on the subject. He now seeks to extricate himself from this position by claiming that under the law as it now exists he was compelled to present his instructions to the court before he was aware of the nature of all the testimony. Since he made no request to withdraw the tendered instructions, he cannot now seek a reversal on the contention that the court should not have given instructions on the subject. Moreover, we cannot see how defendant Starling was injured by these instructions, for the reason that the evidence clearly establishes that the collision occurred in territory outside of a business or residential district as defined by the California Vehicle Act (St. 1923, p. 517, § 281/212, as added by St. 1929, p. 510). Indeed, defendant Starling requested the court to so instruct the jury. The court did not give this instruction, but did instruct the jury as follows: “You are instructed that every public highway shall be conclusively presumed to be outside of a business or residential district unless its existence within a business or residential district shall be established by clear and competent evidence as to the nature of the district and unless sign-posted when and as required by this act.”

Defendant Starling complains of the refusal of the trial court to give that portion of his requested instruction which embodies the provisions of section 113(d) of the California Vehicle Act (St. 1923, p. 553, § 113(d), as amended by St. 1931, p. 2120), and which is as follows: “In any civil action the driver of a vehicle who has operated such vehicle at a speed in excess of the miles per hour set forth in subdivision (b) applicable at the time and place shall not be deemed to have been negligent by reason thereof as a matter of law but in all such actions the burden shall be upon the opposing party to establish that the operation of such vehicle at such speed constituted negligence.” No instructions were given to the jury on the subject of the legal rate of speed in territory outside of a business or residential district, and the jury was nowhere instructed that the operation of a vehicle in excess of the maximum lawful speed was negligence as a matter of law. Since the evidence conclusively established that the highway at the point in question was not in a business or residential district, and since no instructions were given as to speed in “outside” territory, it is evident that the failure to give the instruction requested did not result in a miscarriage of justice.

Defendant Malone contends that the trial court erred in instructing the jury in the words of the statute that “the driver of a vehicle entering a public highway from a private road or drive shall yield to all vehicles approaching on such public highway,” followed by the instruction that if Malone did not yield the right of way he was guilty of negligence as a matter of law. He argues that the court should have combined with this instruction the element that the statute should be given a reasonable construction and that Malone's duty was only to exercise ordinary care to obey the statute and to “behave as a reasonable man would behave with the privilege of perhaps committing errors of judgment not amounting to negligence.” The same criticism is made of another instruction in which the court instructed the jury in the language of the statute, “the driver of any vehicle upon a public highway, before starting, turning or stopping such vehicle, shall first see that such movement can be made in safety, and if it cannot be made in safety, shall wait until it can be made in safety,” without adding to the instruction a similar instruction to the effect that Malone's duty was to use such precaution as would satisfy a reasonably prudent person acting under similar circumstances. Plaintiff, in answering this contention, calls attention to the fact that defendant Malone has not complied with rule 8 of this court, wherein it is provided that “where instructions given to a jury are attacked as erroneous, all other instructions given, bearing upon that subject, must be printed in full in appellant's brief.” A number of instructions were given on the subject in question, most of them at the request of defendant Malone, in which the duty of Malone under the circumstances is clearly and properly stated. These instructions were not printed by Malone in his opening brief. In another instruction the court instructed the jury to consider all the instructions as a whole. Since defendant Malone failed to print in his brief “all other instructions given upon the subject,” he cannot now present the point. Coats v. Hathorn, 121 Cal.App. 257, 8 P.(2d) 1038. However, we have examined all the instructions on the subject, for the reason that defendant Starling maintains that they were too favorable to Malone and therefore injurious to Starling. We find that the instructions as a whole fairly stated the law on these points and that neither of the defendants was injured thereby.

The judgment is affirmed as to both defendants.

WOOD, Justice.

We concur: CRAIL, P. J.; McCOMB, Justice pro tem.

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