Petersen v. Devine

SHINN, J.

This is an action for personal injuries sustained by plaintiff when the rear end of his automobile was struck by a car driven by defendant traveling in the same direction. Judgment upon a verdict for defendant was entered and plaintiff appeals. Plaintiff was driving on the highway a few miles south of Lone Pine, Inyo County. He overtook a man and a child walking northerly along the edge of the highway, slowed down or stopped in order to give them a ride, which they declined, when his ear was struck by that of defendant which approached from the rear. They were on a two-lane highway marked in the center by white lines. Plaintiff’s contentions are that the verdict was not justified by the evidence and that the jury were erroneously instructed. We shall notice first the argument which is directed to the giving of five instructions on contributory negligence and in this connection will have occasion to refer to portions of the evidence.

It is insisted by plaintiff that there was no evidence which would have warranted the jury in finding that plaintiff

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was in any respect guilty of contributory negligence, and that the giving of the instructions was prejudicially erroneous. The first instruction complained of instructed the jury that they could not apply the doctrine of comparative negligence. The second one placed the burden of proof of contributory negligence upon the defendant and stated that the defense would be made out if it was proved by a preponderance of evidence that plaintiff was negligent and that such negligence contributed in some degree as a proximate cause of the injuries. The third instruction stated the imminent peril doctrine, but without indication that it might apply to the conduct of one party more than to that of the other. The fourth instruction stated the issues in the case, among them the issue of contributory negligence, and the fifth one stated the requirement that one who stops or suddenly decreases speed on a highway shall give a hand signal to a driver immediately to the rear. All of these instructions were correct statements of the law.

The accident happened in daylight hours. Plaintiff testified that as he was driving north he observed the defendant’s car behind him “quite far back” maybe half a mile or so”; that as he got within 100 feet or 100 yards “or something like that” of the man and child he honked his horn to see if they wanted a ride, but the man motioned with his hand, indicating for him to go ahead; that he, plaintiff, did not lean out of the car and that he had traveled a little way past the pedestrians when his car was struck from behind, and that he might have taken his foot off the throttle and decreased his speed to see whether he “was going to make a stop or not,” and he testified, “I wasn’t going to make a stop. He gave me the sign to go ahead and it seemed something hit me. ...” He testified further that the highway was level, that if there were any dips in it he did not see them, and that he gave no signal of his intention to slow down or stop. Defendant testified that he was driving at 40 miles an hour and had followed plaintiff for four or five miles, gradually drawing closer to him; that the road south of the impact was ‘ ‘ dippy, sort of like a roller coaster but not as severe,” and that “this continues for a mile, a mile and a half or two or three miles”; that as he came over one dip, he saw plaintiff going into another one and as he, defendant, went into the next dip, he would lose sight of