Stricklin v. Rosemeyer

NOURSE, P. J.

The plaintiff has appealed from the second

adverse verdict of a jury denying him damages for injuries. On the former appeal this court reversed the judgment for defendants mainly on the error arising from the introduction of a San Francisco traffic ordinance which the Supreme Court in another matter held to he invalid after the trial of the case.

(Stricklin

v.

Rosemeyer, 52

Cal.App.2d 558 [126 P.2d 665].)

The evidence upon which the verdict rests is that plaintiff parked his automobile near the curb in front of his home with the left side of the vehicle facing the street. He opened the left front door, put his feet upon the running board and, with his head and shoulders protruding, looked to the rear and saw a passenger bus approaching which was operated by defendants. The bus was then from twelve to twenty feet to the rear of plaintiff’s car, and was traveling about fifteen miles an hour. The plaintiff then threw the door of his car farther open and prepared to alight into the street. The right door of the bus had been left open while the driver was collecting a fare and this door struck the door of plaintiff’s car with such force that it rebounded and injured plaintiff. The collision caused the bus to swerve so that the left rear fender of plaintiff’s ear was scratched by some portion of the rear of the bus. The appeal rests upon two grounds, the plaintiff claiming error in the giving of an instruction and in refusing one proposed by him.

At the request of respondents the trial court gave this instruction: “Now I will read you some instructions that have been submitted by the defendant.

“I instruct you that where a person has a choice of two ways of performing an act, one of which is safe and the other of which he knows (or in the exercise of reasonable care should know) is subject to danger; and such person chooses the dangerous way of performing the act and as a direct proximate result thereof is injured, such person is guilty of contributory negligence and is not entitled to recover damages from another on account of his injuries so received. ’ ’

At the request of appellant the trial court gave this instruction: “The plaintiff, Charles Stricklin, is not to be

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