Johnson v. Gokey

EDMONDS, J.,

pro tem.

On appeal from a judgment entered after verdict of a jury in an action for personal in

[498]

juries, the defendants présent the sole question of the effect of an instruction erroneously given.

The automobile accident which caused plaintiffs’ injuries occurred before the amendment made in 1931 to section 113 of the California Vehicle Act. (Deering’s Gen. Laws, 1931 Ed., Act 5128.) The ease was tried after the effective date of the amendment. The jury was instructed that: “If you find that defendant Robert Gokey was driving the Studebaker automobile in excess of the speed limit as he entered the intersection, that is, in excess of 15 miles per hour, then I instruct you that said defendant Robert Gokey was guilty of negligence as a matter of law.” Respondents concede that this instruction was erroneously given

(Pilcher

v.

Tanner Motor Livery,

138 Cal. App. 558 [33 Pac. (2d) 58]), but contend that no prejudicial error resulted therefrom.

The defendant driver having admitted entering the intersection at more than 15 miles per hour, the jurors by this instruction were told that he was guilty of negligence as a matter of law. They were not given the opportunity to determine whether or not “the operation of such vehicle at such speed constituted negligence”. (Deering’s Gen. Laws, Act 5128, sec. 113.) This deprived the defendants of a substantial right and they have been prejudiced thereby unless the verdict rendered is the only one which the evidence will support.

(Bieser

v.

Davies,

119 Cal. App. 659 [7 Pac. (2d) 388].) But if the evidence will support a verdict for the appellants and under a correct instruction there might have been a verdict in their favor, they are entitled to a new trial.

(Hamlin