Klinefelter v. MacHen

ADAMS, P. J.

This is an appeal from a judgment in favor of defendants, entered upon the verdict of a jury, in an action for recovery of damages for injuries sustained in an automobile collision alleged to have been caused by the negligence of defendants. The latter relied upon contributory negligence by plaintiff.

Two propositions are relied upon by appellant, to wit: that the evidence is insufficient to sustain the verdict, and that the

[813]

court committed reversible error in the giving of an instruction.

The collision occurred about 6 p. m. on July 11, 1948, at the intersection of 45th and T Streets in Sacramento. Plaintiff was proceeding south on 45th Street, and defendants’ car was proceeding west on T Street. In the intersection the cars collided. Appellant argues that the evidence shows that the driver of defendants’ car was negligent, but this is immaterial if plaintiff was guilty of contributory negligence. The evidence is conflicting as to the point of impact, and the jury could have concluded therefrom that plaintiff was “cutting the corner” and was in defendants’ part of the street when the collision occurred. The issue of contributory negligence is one left to the determination of the trier of fact, and such determination will not be disturbed on appeal if there is any substantial evidence to sustain it.

(Page

v.

Cudahy Packing Co.,

31 Cal.App.2d 282, 289 [87 P.2d 913];

Reeves

v.

Lapinta,

25 Cal.App.2d 680, 682 [78 P.2d 465] ; 3B McKinney’s Digest, § 371, p. 521 et seq.)

The instruction complained of by appellant reads:

“Section 544 of the California Vehicle Code in full force and effect at the time of the occurrence of this accident provided as follows:

‘1 ‘ Turning movements and required signals.