DUTCHER v. CITY OF SANTA ROSA HIGH SCHOOL DISTRICT

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District Court of Appeal, Third District, California.

Vinton H. DUTCHER and Edna M. Dutcher, Husband and Wife, Plaintiffs and Appellants, v. CITY OF SANTA ROSA HIGH SCHOOL DISTRICT, Board of Education of the City of Santa Rosa, Kenneth Brown, Helen M. Lehman, Hirschel Niles, Harvey Sullivan, John H. Moskowitz and Rollo Norris, Defendants and Respondents.

Dennis REHE, a Minor, by his Guardian ad litem, Lee Rehe, and Lee Rehe, Individually, Plaintiffs and Appellants, v. CITY OF SANTA ROSA HIGH SCHOOL DISTRICT, Board of Education of the City of Santa Rosa, Kenneth Brown, Helen M. Lehman, Hirschel Niles, Harvey Sullivan, John H. Moskowitz and Rollo Norris, Defendants and Respondents.

Decided: December 29, 1955

C. D. Dorn, San Francisco, for Vinton H. Dutcher. Lewis H. DeCastle, Santa Rosa, for Dennis Rehe. Lounibos & Lounibos, Petaluma, for respondents.

On petition for rehearing respondents assert that we misconceived their contentions in support of the judgment in that we stated they contended the record herein manifested that Norris was as a matter of law free from negligence. On the contrary they say they conceded that whether or not Norris was negligent was properly submitted to the jury as an issue of fact for the jury to decide. A reexamination of the record shows respondents' assertion in this regard to be correct. Correction of this error, however, does not affect the disposition of the appeal.

It is ordered that the third paragraph appearing on pages 3 and 4 of the typewritten opinion heretofore filed by this court is amended to read as follows:

‘It is conceded by respondents that the question of whether or not Norris was negligent was to be resolved by the jury as an issue of fact and that, therefore, the trial court properly submitted that issue to the jury. The errors urged on appeal by appellants are confined to claims of error in instructions given.’

We have examined the petition for rehearing and are satisfied with the disposition we heretofore made and, accordingly, the petition is denied.

PER CURIAM.

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