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GUILLOT v. HAGMAN et al.*
This is an appeal from a judgment in favor of the plaintiff in an action for damages arising out of the collision of the defendants' automobile with the plaintiff as a pedestrian. It is the contention of the defendants that the plaintiff was guilty of contributory negligence as a matter of law, and that as a matter of law the defendants were not guilty of any negligence. It is our duty to view the evidence in the light most favorable to the plaintiff.
Eureka drive extends into Ventura boulevard, but not beyond it. Ventura boulevard runs east and west. Eureka drive runs into the boulevard in a northwesterly direction. The plaintiff parked his automobile on the south side of Ventura boulevard, a few feet west of Eureka drive, walked to the southwest corner of the intersection, and as a pedestrian started to cross Ventura boulevard. The plaintiff went from 7 to 10 feet from the curb in the unmarked crosswalk when he stopped, waiting for traffic to be favorable so that he could proceed safely. During that period 25 or 30 cars with their lights lit passed in both directions. When he thought his way was clear, the plaintiff again proceeded across Ventura boulevard, and while doing so looked in both directions. He proceeded on until he passed the double white line of the street, a distance of over 60 feet from the south curb, and continued for a short distance, when without warning he was struck by the defendants' car operated by defendant Earl Hagman, eighteen years of age, who was driving along Ventura boulevard in a westerly direction. The lights of his car were not lighted. He had obtained the car from the dealer the day before.
Practically the entire argument of the defendants is built upon the contention that the plaintiff was 30 feet west of the unmarked crosswalk at the time of the accident and was obliged to yield the right of way to the defendant. This contention is not meritorious because the defendants, to make it, prolonged the wrong sidewalk lines. At the intersection of the two streets there appears a short sidewalk running north and south, approximately 5 feet in length, extending into and at right angles with Ventura boulevard. That sidewalk line is the line to be prolonged and it marks the westerly boundary of the unmarked crosswalk at that intersection, pointing across Ventura boulevard at right angles.
There is substantial evidence in the record to sustain the implied findings of the jury that the defendant driver was guilty of negligence which was the proximate cause of the accident, and that the plaintiff was free from negligence which contributed to the accident.
The defendants next contend that the instructions of the court on the subjects of negligence and contributory negligence were erroneous and prejudicial to the defendants. Defendants' objections, however, are mainly based upon the claim that the plaintiff was negligent as a matter of law and that there was no evidence to show that the driver was negligent. We have already held that these contentions are untenable. All of the instructions, but one, concerning which the defendants complain under this point, have heretofore been approved by the appellate courts of this state.
The instruction which has not heretofore been approved is a formula instruction which contains the phrase, “therefore, * if you believe * that the plaintiff, E.F. Guillot, being himself free from any negligence contributing directly and proximately to the happening of the accident, *.” The contention of the defendants is that this formula instruction leaves out the element of contributory negligence, and the defendants even contend that the instruction directs the jury that the plaintiff was free from any negligence. But the fact is that in six or seven other instructions the court carefully instructed the jury, at the defendants' request, on the question of the contributory negligence of the plaintiff. The court merely used the wrong tense of the verb when it used the word “being”, intending to use the word “was”, so that in essence the instruction read, “if you believe from the evidence that the plaintiff, E.F. Guillot, was himself free from any negligence”, etc. There is nothing in this contention which would warrant a reversal.
The defendants next contend that the judgment against the Kelley Kar Company is without support in the evidence and is contrary to law. Under this title the defendants contend that the Kelley Kar Company had sold the automobile to the Hagmans the day before the accident and had turned possession of the car over to the Hagmans, and that there is not the slightest dispute in the evidence of such facts. However, there is in evidence “Exhibit 5”, a conditional sales contract covering the sale of the automobile dated four days after the accident, and there is substantial evidence in the record from which the jury might reasonably infer that at the time of the accident the Kelley Kar Company still owned the automobile.
The defendants next contend that the rulings of the court on the admission of evidence constituted prejudicial error, but we see no ground for the reversal of the case on this contention.
Finally, the defendants contend that the instructions given by the court on owner's liability were erroneous, and further that the court's refusal to give to the jury defendants' requested instruction No. 22 was erroneous. We do not set the instructions out in full because of their length and because in our view of the case there has been no miscarriage of justice (Constitution of California, art. 6, § 4 1/212), and it is not necessary for us to discuss the instructions in detail.
Judgment affirmed.
CRAIL, Presiding Justice.
We concur: WOOD, J.; McCOMB, J.
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Docket No: Civ. 12006
Decided: December 16, 1938
Court: District Court of Appeal, Second District, Division 2, California.
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