Gould v. Western Dairy Products, Inc.

[189]

WOOD, J.

This action was commenced by the heirs of Albert T. Gould, who was killed May 14, 1934, in an automobile accident at the intersection of Lake and Alameda Streets in the city of Burbank, to recover damages resulting from his death. A jury trial was conducted before Judge William S. Baird and a verdict was returned in favor of defendants. A motion for a new trial was heard by Judge Emmet H. Wilson during the absence from the state of Judge Baird. Judge Wilson granted the motion “on the ground of errors in law occurring at the trial and excepted to by the plaintiffs”. Defendants have appealed from the order granting a new trial.

Boulevard stop signs of the type referred to in the California Vehicle Act had been erected at the intersection in question in 1927 under the direction of the board of police commissioners of Burbank and were in place at the time of the accident. The only eye-witness, defendant Borgquist, driver of the other ear involved, testified that decedent did not stop his car at the intersection. An ordinance of the city of Burbank was introduced in evidence providing in part as follows: “The Board of Police Commissioners is hereby authorized and required to place and maintain, or cause to be placed and maintained upon such street or streets as in its opinion shall be deemed advisable at or near the property line of the boulevard, appropriate signs upon such street or streets, or devices or marks in the roadway, such signs, devices or marks to bear the word ‘Stop’ or the words, ‘Boulevard Stop’ in such position and with letters of a size to be clearly legible from a distance of fifty feet (50) along the street or streets intersecting such boulevard. Such streets ■ or intersections, when the signal, device or marks are placed and maintained by the Board of Police Commissioners, as in this section above provided, shall be considered as boulevard stop intersections or boulevard stop streets, as the case may be. Every operator of a vehicle or street car traveling any boulevard stop intersection or boulevard stop street shall bring such vehicle or street car to a full stop at the place where such street meets the prolongation of the near property line of such boulevard. ’ ’

The trial judge instructed the jury in part as follows: “ If you find from the evidence that Albert Gould violated the