Wertheim v. Mears

McCOMB, J.

From a judgment in favor of defendant after trial before a jury in an action to recover damages for personal injuries, plaintiff appeals.

Facts:

The evidence being viewed in the light most favorable to defendant (respondent) discloses that defendant was driving on Franklin Avenue in the city of Los Angeles just east of a crosswalk at Vista del Mar; that as he approached the easterly side of the crosswalk he did not observe any person in it; that he was driving at about 15 miles per hour and plaintiff dashed out from the curb and ran into the side of his ear while he was in the crosswalk.

Questions:

First:

Did the court commit prejudicial error in giving the jury an instruction on the doctrine of unavoidable accident?

No.

Where as in the instant case there is a general denial by defendant of negligence it is not error for the trial court to instruct the jury on the doctrine of unavoidable accident.

(Jolley

v.

Clemens,

28 Cal.App.2d 55, 64 [4] et seq. [82 P.2d 51];

Sitkei

v.

Ralphs Grocery Co.,

25 Cal.App.2d 294, 297

[122]

[4] [77 P.2d 311];

Pearce

v.

Elbe,

98 Cal.App. 101, 105 [6] [276 P. 389].)

Wilkerson

v.

Brown,

84 Cal.App.2d 401 [190 P.2d 958],