Hopkins v. Tye

WOOD (Fred B.), J.

Defendant-appellant predicates prejudicial error solely upon the giving of an instruction on waiver of right of way.

The court read to the jury the text of sections 510, 525, 540, subdivision (b), 544, subdivision (b), 546, subdivision (a) and 551 of the Vehicle Code, informing the jury that violation of any of these sections would be negligence

per se,

giving rise to a rebuttable presumption of negligence; and then instructed on waiver of right of way as follows: “A person who has the right-of-way may intentionally waive that right or he may give the appearance of intentionally waiving it. If he conducts himself in such a definite manner as to create a reasonable belief in the mind of another person that the right-of-way has been waived, then such other person is entitled to assume that the right-of-way has been given up to him and he may rely and act upon that assumption until some fact or circumstance leads him to believe to the contrary or would have led an ordinarily prudent person in like position to believe to the contrary.”

Defendant criticizes this instruction. He says it is incomplete, that it is based upon BAJI (Civil) Number 150-G, paraphrasing the first two paragraphs of BAJI but omitting the third and last paragraph.

*

BAJI was derived from a statement appearing in

People

v.

Noland,

83 Cal.App.2d Supp. 819, 821 [189 P.2d 84], which concluded with a declaration that an intention to relinquish a right of way ‘‘will not appear from a mere showing that a pedestrian whose course is likely to intersect that of a vehicle at a crosswalk hesitates, stops, jumps back or does any other act apparently impelled by uncertainty as to the safe course or desire to escape impending danger.” (P. 822.) That was simply a statement that such conduct would not furnish a reasonable basis for

[433]

an inference that he waived his right of way. It would not add anything fundamental to the instruction which the court gave in this case. It was an added detail or embellishment which defendant should have asked for if he wanted the jury to have it.