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District Court of Appeal, Third District, California.

BARONE et al. v. JONES et al.

Civ. 7295.

Decided: February 14, 1947

Hawkins & Hawkins, of Modesto, and Lasher B. Gallagher, of Los Angeles, for appellants. Robinson & Cornell, of Merced, for respondents.

On petition for rehearing it is contended this court failed to consider plaintiffs' challenged instructions numbered 3, 5, and 18. Other challenged instructions were specifically considered, and the said three instructions were generally considered. The court concluded by stating that the challenged instructions were not prejudicial or erroneous. But in view of the impression of appellants that the court failed to consider said instructions, the opinion is modified by adding thereto, on the last page, after the paragraph ending with the words, ‘paved portion of the highway,’ the following:

Instruction No. 3 is not erroneous. It merely informed the jury that when a machine is parked on the public highway contrary to law, the failure to place signal lights on the highway as required by statute constitutes negligence. We think that is a correct statement of the law. The jury was further and fully instructed on that subject in the language of section 590 of the Vehicle Code. The jury could not have been misled by that instruction. All instructions must be read together.

Plaintiffs' instruction No. 5 also appears to be a correct statement of the law. The jury was informed in the language of section 590 of the Vehicle Code that when a disabled truck is parked on the public highway it is the duty of the operator to immediately place warning signals 100 feet in advance and to the rear of the disabled vehicle, and that, upon proof that the defendants left their truck parked on the public highway, the burden was on them to show that they had complied with the statute in placing the warning lights before and behind the parked truck as required by law. We have previously held that the parking of a machine on the public highway contrary to the statute shifts the burden to the defendants to show that it was not practicable for them to park off the highway. We think the same principle applies to the foregoing instruction, and that the burden is then on the defendants to show by a preponderance of the evidence that they complied with the statute in placing the warning lights. There is evidence in this case that the flares were not placed 100 feet before and behind the truck as required by law. The foregoing instruction is therefore not erroneous or prejudicial.

Plaintiffs' instruction No. 18 merely informed the jury that if the evidence shows that plaintiffs operated their machine as a reasonably prudent person would under the circumstances, they would not be guilty of contributory negligence. That instruction is in accordance with section 510 of the Vehicle Code, which provides that no person shall drive upon the highway at a speed greater than ‘is reasonable or prudent’. In support of their contention that the foregoing instruction is erroneous, the appellants rely on the case of Duncan v. J. H. Corder & Son, 18 Cal.App.2d 77, at page 83, 62 P.2d 1387, at page 1390, in which it is said that: ‘Where a driver, as in the instant case, has failed to conform to a statutory requirement, he cannot establish freedom from responsibility on the ground that he acted as a prudent person would have acted.’ (Italics added.)

In that case the plaintiff sought to pass a truck on the highway without sounding his horn, thereby violating the provisions of section 528 of the Vehicle Code, by failing to give the ‘audible signal’. Proof of the violation of the statute in that case established prima facie evidence of contributory negligence on the part of plaintiff. In the Duncan case, the court refused defendants' proposed instruction that it was the duty of the operator of a vehicle ‘to sound a warning when passing or about to pass another vehicle’. In the present case the question of the sounding of a horn by plaintiffs, or of the violation of any other statute, except by alleged excess speed, was not involved. It is apparent that it would be useless to sound a horn when approaching a truck parked on the highway, which was not occupied by any person. That instruction was therefore neither erroneous nor prejudicial.

With the foregoing amendment to our opinion, the petition for rehearing is denied.


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