Clary v. Lindley

WARD, J.

This is an action for personal injuries alleged to have been sustained as the result of a collision between two automobiles. Plaintiff was driving his machine on the state highway northerly between Spreckels and Salinas. Defendant Louis Rodrigo, a chauffeur for defendant owner Albert Lindley, was also driving northerly when Lindley, for the purpose of avoiding traffic, gave the chauffeur instructions to retrace part of the highway and turn off to another road. Defendant Rodrigo drove over to a space off the main part of the highway and attempted at a speed of approximately five miles an hour to make a “U” turn. Plaintiff, driving at about thirty-five or forty-five miles an hour, saw the movement of the defendants’ car at some distance away. The collision occurred and plaintiff suffered certain injuries.

In the answer of the joint defendants, contributory negligence was alleged. The defendant Lindley cross-complained against plaintiff Clary, alleging negligence, and prayed for damages for the difference in the value of the Lindley car prior and subsequent to the accident. The cross-defendant answered and alleged contributory negligence on the part of the cross-complainant. The ease was tried before a jury.

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A verdict was rendered in favor of plaintiff, and from the judgment upon the verdict this appeal has been taken.

The court, at the request of plaintiff, instructed the jury as follows: “The mere fact that a collision occurred in Avhich the plaintiff Bob Clary was involved does not raise any presumption that he was guilty of contributory negligence. On the contrary, the law presumes, in the absence of evidence, that he was entirely free from fault and this is a presumption which follows him throughout the trial unless and until overcome by other evidence.” There appears in the record no equivalent instruction with reference to defendants or to cross-complainant Lindley. The instruction singles out “plaintiff Bob Clary” as the only one whose evidence might possibly be reinforced by a presumption that he was “free from fault”.

“A disputable presumption is a substitute for proof of facts. It is a species of evidence that may be accepted and acted upon when there is no other eAddence to uphold the contention for which it stands.”