Smith v. Hale

SCHAUER, J.,

pro

tem.

An action for damages for personal injuries arising out of the alleged negligent operation of an automobile was tried before a jury, and from the judgment entered upon a general verdict in favor of defendants, plaintiffs appeal, asserting that the trial court erred in the giving of certain instructions requested by defendants and in its denial of plaintiffs’, motion for a new trial upon the ground of newly discovered evidence. No claim is made that the evidence is insufficient to support the verdict, but our attention is directed to the sharp conflict between the testimony of witnesses for the plaintiffs and that of those for the defendants, such witnesses, on the question of negligence, being equal in number and bearing substantially the same relationship to the case. Upon such conflict of testimony and balance in number and relationship of witnesses plaintiffs seek to establish prejudice in the asserted errors of law.

1. It is contended that the court- erred in instructing the jury upon the subject of unavoidable accident, not for any imperfection in the given instruction as an abstract

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principle of law, but that it was inapplicable to the pleadings and proof. The complaint alleges that the defendants were negligent, and in their answer the latter deny negligence on their part and plead contributory negligence of the plaintiffs; they do not specially plead unavoidable accident as a defense. There has been cited to us no authority in California requiring that unavoidable accident be specially pleaded, but in any event upon the pleadings as they existed in this case, and the evidence, the jury could have found that neither plaintiffs nor defendants had sustained the burden of proving negligence upon the part of the other. Therefore, there was no error in giving the mentioned instruction.

2. The accident forming the subject of the case occurred on July 21, 1929. The 1929 amendments to the California Vehicle Act did not go into effect until August 14, 1929; hence the provisions of that act as they existed subsequent to the amendments of 1927, but prior to the amendments of 1929, were controlling. At the request of plaintiffs the court correctly instructed the jury upon the duties of the driver of an overtaking vehicle under the provisions of section 122 of that act as the same existed at the time of the accident, and at the request of defendants it also gave an instruction upon the law as amended in 1929. This was error, but such instructions under the evidence were applicable only to defendants and were so worded as to make the error beneficial to the plaintiffs rather than detrimental to them. The only reasonable effect of such dual instructions was to place upon the defendants, who operated the overtaking car, the necessity for complying with the law as it existed both before and after the 1929 amendments. In other words, the jurors were told that they “must find for the plaintiffs” upon the issue of defendants’ negligence if they found that the defendants had violated the 1927 law and they were also informed as to the duty of the driver of an overtaking car as prescribed in the 1929 law. Under these instructions the jury was bound to find that the defendants were negligent if the evidence established violation of either law. Plaintiffs therefore suffered no prejudice from such error.