Ekwall v. Los Angeles Hat Co.

Plaintiff sued for damages for personal injuries arising out of an automobile accident. The cause was tried before a jury, which returned a verdict in the sum of $18,000. From the judgment on the verdict the defendants appeal upon typewritten transcripts.

The complaint alleged that the injuries were due to the negligence of the defendant Marks, who was at the time of the collision a salesman in the employ of the Los Angeles Hat Company. An answer was filed, verified by the defendant Marks, in which this allegation was not denied. On the morning of the trial the defendants, having procured new counsel to represent them, moved the court for leave to amend the answer for the purpose of denying this allegation. The motion for leave to amend was denied and the cause went to trial before the jury on the original pleadings. The claim of the Los Angeles Hat Company was that, although the defendant Marks was a salesman in its employ, he was also engaged by two other concerns, and that at the time of the collision he was in the course of his employment with one of these others. On this theory the defendant Los Angeles Hat Company sought the privilege to urge in its defense that the defendant Marks was not in the course

The facts of the case are practically without conflict. The plaintiff was riding with her husband, Arthur Ekwall, going northerly on Telegraph Avenue in the city of Oakland. The defendant Marks was driving southerly upon the same avenue. Plaintiff’s husband signaled for a left-hand turn when he approached Apgar Street. After he had turned to the left in the middle of Telegraph Avenue and had proceeded over the car tracks running north and south on that avenue he came to a stop to allow other cars bound south on Telegraph Avenue to pass him. After three such cars bound south had passed him he started ahead and was struck by the Marks car before he had proceeded more than

Upon this state of the evidence the appellants insist that we should hold that the respondent was guilty of contributory negligence as a matter of law arising out of negligence of her husband, with whom she was riding. It is conceded, as it must be, that if the respondent’s husband was guilty of contributory negligence such negligence must be imputed to her. But when it comes to determining whether a particular state of facts constitute contributory negligence as a matter of law we are confronted with the rule “the question of contributory negligence is one of fact for the jury to solve under proper instruction, and not one of law, save in those cases in which, judged in the light of common knowledge and experience, there is a standard of prudence to which all persons similarly situated must conform.” (Williams v. Pacific Elec. Ry. Co., 177 Cal. 235 , 237, 238 [ 170 Pac. 423 ].) As was said in Swartz v. Acme Express & Drayage Co., 102 Cal. App. 615 [ 283 Pac. 658 ], “in the absence of some rule of conduct which is established by statute, by judicial decision, or by established custom or practice, we cannot say that any particular method employed to avoid injury is negligence as a matter of law because it is not the method that we would have used under the same circumstances.”

In the case before us the rule of conduct prescribed by statute is found in section 130 of the Motor Vehicle Act (Stats. 1923, p. 558) and reads: “The driver of any vehicle upon a public highway before starting, turning or stopping such vehicle shall first see that such movement can be made in safety, and if it cannot be made in safety, shall wait until it can be made in safety ...” It would

The error in this instruction, number 46, is such that the cause must be reversed for a new trial. Therein the trial court instructed the jury that if the automobile of the respondent entered the northwesterly quarter of the intersection before the vehicle of defendant Marks had entered the intersection, then the respondents “would be entitled to the right of way to cross Telegraph avenue ahead of any vehicle coming from the north which had not at that time entered the intersection.” The effect of this instruction was to advise the jury that any motor vehicle entering an intersection had the right of way to cross through that intersection making a complete left-hand turn (and even what is called a “U” turn) ahead of any other machine which had not previously entered the intersection at any other point. That is not the law, as was clearly pointed out by the Supreme Court in Donat v. Dillon, supra. The facts in that case were very similar to the facts here excepting that the party claiming a continuous right of way was the defendant in the action. In dismissing this claim the Supreme Court said: “Although a machine first reaching the intersection may have the right of way, it does not follow that one who changes his course at the intersection of a street is entitled to the full protection of this rule, for common sense tells us that he is bound to exercise great care to avoid colliding with machines that are on the street and across whose path he must travel. (Clark v. Fothering

The only defense to the instruction made by the respondent on this appeal is that it must be read in connection with all other instructions. This, of course, is a general rule of practice, but in this particular case the reading of this instruction with the others merely emphasizes the vice of the instruction complained of. In instruction number 45 the jury was advised that if the respondent’s husband failed to ascertain that the left turn could be made in safety or neglected to give the requisite hand signal that this constituted negligence as matter of law. This instruction was immediately followed by number 46, which is the one complained of. Taking these two instructions together, the jury could not escape the conclusion that if the respondent’s husband approached the northwest corner of the intersection before appellants’ car reached the corresponding corner, then respondent’s husband had a clear right of way to proceed through that intersection turning to the left and crossing Telegraph Avenue, and that this legal right was in itself sufficient to satisfy him that the left turn could be made in safety within the meaning of instruction number 45.

Judgment reversed.

Sturtevant, J., and Dooling, J., pro tem., concurred.

A petition for a rehearing of this cause was denied by the District Court of Appeal on May 19, 1930, and a petition by respondent to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on June 16, 1930.