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SHUEY v. ASBURY.*
Plaintiff recovered judgment against defendant for injuries resulting from an automobile collision, from which the latter appeals.
The jury was instructed at the request of plaintiff as follows: “You are instructed that section 113 of the California Vehicle Act provides that in business districts such as the one described in this case, that the driver of any motor vehicle shall drive the same at a speed not exceeding twenty miles per hour. This act in itself is negligence as a matter of law, and if you believe from the evidence that defendant at the time and place was driving in excess of twenty miles per hour and that such negligence was the sole proximate cause of the accident and injuries, if any, to the plaintiff herein, then your verdict should be for the plaintiff and against the defendant.” Although it is conceded that the instruction was erroneous in view of the express provisions of subdivision (d) of said section 113 (St. 1923, p. 553, as amended by St. 1931, p. 2120), respondent urges that no miscarriage of justice resulted, and that the conclusion reached by the jury would have been the same even if the erroneous instruction had been withheld.
Appellant was driving south on La Brea avenue in the city of Los Angeles at about 6:30 o'clock in the evening of April 21. Respondent had been in a parking lot on the west side of La Brea between Rosewood and Oakwood avenues, and went southeast for a short distance as she entered La Brea, intending to go south on that avenue. She cleared the curbing with her car and paused to permit two busses to pass in front of her. Thereupon the car of appellant could be seen at the intersecting street to the north, and respondent estimated its speed to be from forty to forty-five miles per hour. Appellant testified that the car of respondent appeared to be slowly moving into the street and that she attempted to pass to the right of it rather than risk a head-on impact with a northbound car, which she apprehended if she tried to pass respondent's car on its left.
The jury concluded that respondent was not guilty of contributory negligence. Whether they would have decided that appellant was negligent as a matter of fact if the erroneous instruction had not been given is a question that we are unable to answer, and must therefore hold that the giving of the instruction assailed was prejudicially erroneous, notwithstanding that we have in mind the rule announced in Potter v. Driver, 97 Cal. App. 311, 275 P. 526, and Reaugh v. Cudahy Packing Co., 189 Cal. 335, 208 P. 125, Hatzakorzian v. Rucker-Fuller Desk Co., 197 Cal. 82, 239 P. 709, 41 A. L. R. 1027, and Rush v. Lagomarsino, 196 Cal. 308, 237 P. 1066, requiring alertness on the part of the operator of a motor vehicle and a continuing control which will enable him to meet emergencies.
In Noble v. Miles, 129 Cal. App. 724, 19 P. (2d) 265, 266, the statement of the court relied on by respondent must be read in the light of the further portion of the opinion which we have italicized: “Conceding also that the instructions did not properly state the law, it must nevertheless appear that such error would not justify a reversal of the judgment unless it is probable that the result of the trial would have been different if the instruction had been otherwise. We have read the transcript of the evidence, and we are of the opinion that the findings of the jury would have been the same irrespective of any instruction relative to statutory speed limit. As a matter of fact the speed of the cars involved was not particularly stressed and had to do only with the defense of contributory negligence. No contention is made that the verdict was unsupported by the evidence.”
In this case the evidence would support a verdict for appellant, and under a correct instruction there might have been a verdict in her favor. The attention of the jury was directed to the sole question of speed. All attendant circumstances of other traffic, the confusing light of early evening, and the element of surprise, which doubtless attended the discovery by appellant of the other car projecting into the street at such an angle that its movements may not have been fully observable, should have been fully considered by the jury and were in effect withdrawn from their discussion by the instruction here considered, since it was conceded that appellant's speed was in excess of the twenty-mile limit. Appellant is entitled to a new trial. Pilcher v. Tanner Motor Livery, 138 Cal. App. 558, 33 P.(2d) 58; Johnson v. Gokey, (Cal. App.) 41 P.(2d) 193, and cases therein cited.
Judgment reversed.
SCOTT, Justice pro tem.
We concur: CRAIL, J.; STEPHENS, P. J.
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Docket No: Civ. 10308.
Decided: June 25, 1935
Court: District Court of Appeal, Second District, Division 2, California.
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