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

FREEMAN et al. v. CHURCHILL et al.

Civ. 15332.

Decided: November 13, 1946

Russell H. Pray, of Long Beach, and Pierson & Block, of Los Angeles, for appellants. Spray, Davis & Gould, and Parker, Stanbury & Reese, by Raymond G. Stanbury, all of Los Angeles, for respondents.

From a judgment in favor of defendants after trial before a jury in an action to recover damages for injuries resulting from an automobile accident, plaintiffs appeal.

The evidence being viewed in the light most favorable to the defendants (respondents) and pursuant to the rules set forth in Re Estate of Isenberg, 63 Cal.App.2d 214, 216 et seq., 146 P.2d 424, the essential facts are:

On June 5, 1944, at about four o'clock in the afternoon, defendant Churchill was driving a truck filled with hot asphalt which he was transporting from a plant of his codefendant to the Long Beach Municipal Airport, in a southerly direction on Atlantic Boulevard just north of its intersection with Olive Street. Plaintiff Mrs. Freeman, at the same time was driving an automobile, owned by herslef and her husband, in an easterly direction on Olive Street just west of the same intersection. The intersection was controlled by electric traffic signals. Defendant Churchill drove his truck into the intersection when the ‘caution’ signal was displayed for traffic traveling north or south on Atlantic Boulevard. At the instant the ‘go’ signal appeared for traffic traveling west or east on Olive Street Mrs. Freeman drove her car into the intersection. The two cars collided with resulting serious injuries to Mrs. Freeman and her three year old daughter who was riding with her. The latter died from the injuries.

Mrs. Freeman admitted that at the time of the accident and immediately prior thereto she had an unobstructed view of the intersection and the approach thereto for at least half a mile. She further testified that she did not see the truck until it was within about five feet of her car.

There are two questions necessary for us to determine:

First: Was there substantial evidence to sustain the trial jury's implied finding that defendant Churchill was not negligent in the operation of his truck?

This question must be answered in the affirmative and is governed by this pertinent rule of law:

Vehiclar traffic facing a ‘caution’ signal at an official traffic controlled intersection should stop before entering the nearest cross-road at the intersection or a marked line unless such stop cannot be made in safety, in which event a vehicle may be driven cautiously through the intersection or past such signal. (Vehicle Code, sec. 476(1)–1.)

It is unnecessary to cite authorities in support of the proposition that negligence on the part of defendant is a question of fact for determination by the trial jury from all of the evidence in the case, and that its finding will not be disturbed by an appellant court if there is substantial evidence in support thereof.

Defendant Churchill testified that at the time he entered the intersection the traffic controlled signal showed ‘caution’ for traffic traveling in a southerly or northerly direction on Atlantic Boulevard. The evidence further discloses that the truck he was driving weighed four tons, was filled with 8.7 tons of hot asphalt and was traveling about 20 miles per hour. Therefore it was a question of fact for the trial jury to determine whether defendant could have with safety stopped his truck before entering the intersection; and the implied finding that he could not do so and that he proceeded with caution into the intersection thus finds support in the evidence and such action on his part was permissible in view of the rule stated in the section of the Vehicle Code, mentioned supra. Hence the implied finding of the jury that defendant Churchill was not negligent in the operation of his truck being supported by the evidence is binding upon this court.

Second: Did the trial court commit prejudicial error in instructing the jury at the request of defendant Churchill as follows:

1) ‘You are instructed that both drivers, the defendant Mr. Churchill and the plaintiff Mrs. Freeman were required to exercise ordinary care. The same degree of care was required of each of them. Each was required to maintain a reasonable lookout for other traffic lawfully using the highways, as such lookout would have been maintained by persons of ordinary prudence in their positions. Neither of them had the right to assume that the way was clear, if the facts were such that persons of ordinary prudence so situated would not so have assumed.’

This court will not consider any alleged error in the giving of such instruction for the reason that a similar instruction was given at the request of the plaintiffs which reads as follows:

‘It is the duty of every person using a public highway, whether a pedestrian or the driver or operator of any kind of vehicle, to exercise ordinary care at all times to avoid placing himself or others in danger and to avoid a collision.’

The rule is clearly established that an appellant may not urge error in an instruction when at his own request a similar instruction is given by the trial court.

2) ‘You are instructed that the fact that there was a criminal action arising out of this accident has no bearing whatever upon this trial. A criminal trial does not decide any issue which you are called upon to decide in this case. Therefore, the fact that there was a criminal prosecution should not enter into your deliberations in this case for any purpose whatever. It has been material to refer to it in this trial only because statements made by persons who testified previously may be shown on cross-examination to test the accuracy of testimony given by them in this trial.’

The foregoing instruction was a correct statement of law and plaintiff's criticism, that it limited the jury in considering statements made by defendant Churchill at the criminal trial contrary to statements made at the instant trial to impeachment purposes only is without merit. There is nothing in the instruction which says that previous inconsistent statements of such defendant could not be considered as admissions against his interest. Furthermore had plaintiffs desired a further instruction on the subject it was their duty to request it and having failed to do so they may not now urge error in the instruction that was correct insofar as it stated the law. (Peri v. L. A. Junction Ry., 22 Cal.2d 111, 129, 137 P.2d 441; Blanchard v. Norton, 49 Cal.App.2d 730, 734, 122 P.2d 349.)

In view of our conclusion that the jury was justified in finding that defendant Churchill was not negligent, it is unnecessary to consider the alleged errors of the trial court in (1) instructing the jury on the doctrine of contributory negligence, or (2) directing a verdict in favor of said defendant's alleged employer, C. O. Sparks, Mundo Engineering Company.

For the foregoing reasons the judgment is affirmed.

McCOMB, Justice.

MOORE, P. J., and WILSON, J., concur.