Oliphant v. Brown

SHINN, J.,

pro

tem.

In this action by husband and wife for personal injuries to the wife, a pedestrian, struck by an automobile, the verdict and judgment were in defendant’s favor and plaintiffs appeal.

Plaintiff Annie Oliphant while crossing the street was struck by defendant’s automobile. She sustained injuries consisting of concussion of the brain, a broken left clavicle, and a broken right leg below the knee. Upon this appeal plaintiffs rely for reversal of the judgment upon alleged errors in the refusal of an instruction requested by plaintiffs and the giving of an instruction of the court’s own motion.

The instruction given and claimed to be erroneous was a general instruction on negligence, contributory negligence and proximate cause. It was lengthy and is conceded to have correctly stated the law except in a single particular. It read in part as follows: “In order, therefore, to find a verdict for the plaintiff you must not only find from a preponderance of all the evidence that the defendant was negligent but also that such negligence was the proximate cause of the injury to the plaintiff; and you must further find that the evidence fails to show by a preponderance

[586]

thereof that the plaintiff was guilty of negligence contributing proximately thereto; otherwise your verdict must be for the defendant.” The instruction referred, of course, to Annie Oliphant, whom we shall speak of as the plaintiff. It is contended that by this instruction the burden of proof was placed upon the plaintiff to show that she was not guilty of contributory negligence. The instruction, however, is not the same as the ones held erroneous in

Rush

v.

Lagomarsino,

196 Cal. 308 [237 Pac. 1066], and

Howard

v.

Worthington,

50 Cal. App. 556 [195 Pac. 709], cited by appellant. The burden of proof was not shifted by the instruction in question ; plaintiff was left free to recover unless her contributory negligence was established by a preponderance of the evidence. (W