Martin v. Nelson

WARD, J.

This is an appeal in a personal injury action from a judgment after a jury verdict. In his opening brief plaintiff states that the two errors claimed on appeal are based exclusively on instructions to the jury.

On the evening of the accident plaintiff was driving an automobile westward on the upper deck of the San Francisco-Oakland Bay Bridge, which has six vehicle lanes. He was driving in the inner lane for westbound traffic. Defendant driver was proceeding in the opposite direction, in the inner lane for eastbound traffic. Plaintiff testified that he was driving at a speed of approximately 35 miles an hour. Suddenly he became aware that an automobile about two car lengths ahead of him, and traveling eastward, had crossed the center double line for traffic on the bridge into the lane in which he was traveling. A collision resulted.

The following instruction was given: “You are further instructed that any violation of the provisions of the Vehicle Code of the State of California to be read to you shortly is presumptively an act of negligence and conclusively so until rebutted by evidence that it was justifiable or excusable under the circumstances.” It is argued that the above instruction cast upon plaintiff the burden of proving that defendants’- presumptive act of negligence in driving on the wrong side of the road was not justifiable or excusable. Instructions covering Vehicle Code provisions applying to driving on the right side of a roadway, driving on roadways laned for traffic, passing vehicles proceeding in opposite directions and the duty to give signals were given. (Veh. Code, §§ 525, 526, 527, 544, 546, 671.)

The proper conduct of a reasonable person may be regulated by statute. It is true that in an action resulting in injury and damage to person or property, a violation of a statute is in effect a showing of negligence.

(Mora

v.

Favilla,

186 Cal.

[735]

199 [199 P. 17].) Plaintiff contends that such negligence is negligence

per se,