Kohlhauer v. Bronstein

GRAIL, P. J.

—This case comes before us on a motion to dismiss or to affirm the judgment. The appeal is by the defendant from a judgment in an automobile collision ease. The plaintiff was traveling along the highway parallel to a street ear and at the same rate of speed, but near the curb of the street. Just as the street car was crossing an intersection the defendant “shot” his automobile across and in front of the street car and into a collision with the plaintiff's motorcycle.

The court gave an instruction to the jury on the doctrine of sudden peril, and the first contention of the defendant is that the giving of this instruction was prejudicial error for the reason that “there was no evidence tending to show that the plaintiff was in a position of sudden peril” and that “plaintiff at no time saw the automobile of the defendant. This fact is conclusively established by his own testimony ...” As frequently happens where one has received a severe personal injury from an accident, the plaintiff suffered a loss of memory as to all matters connected with

[6]

the accident. The record shows that the plaintiff did not testify he did not see defendant’s automobile at any time before he ran into it, but merely that he did not

recall

seeing it. On the other hand, the very circumstances of the accident as related both by the plaintiff’s and the defendant’s witnesses furnish the basis for a reasonable inference that the plaintiff suddenly became aware of the proximity of the defendant’s automobile and of the peril arising therefrom. The defendant himself testified that he did not see the motorcycle before the accident, his attention being attracted when he heard the tires of the motorcycle skidding, at which time he first observed the motorcycle right opposite his automobile. There is other evidence to indicate that the skidding was for a considerable distance "before the collision. Under this view of the evidence, an instruction on the doctrine of sudden peril was a proper one.

(Raymond

v.

Hill,

168 Cal. 473 [143 Pac. 743];