Mortensen v. Fairbanks

WASTE, C. J.

Judgment went for the plaintiff in this action to recover damages for personal injuries incurred as the result of a collision of automobiles at a five-point intersection of thoroughfares in the city of Los Angeles. The defendants have appealed.

There is evidence from which the jury might have reasonably concluded that plaintiff first entered the intersee

[491]

tion at a proper rate of speed and that the defendant, Cornelia Fairbanks, a minor, had entered the intersection at an excessive rate of speed and without otherwise exercising that degree of care essential to the proper operation of an automobile. However, there is also evidence tending to show that plaintiff while aware of defendant’s alleged careless and negligent approach to the intersection had continued in his endeavor to traverse the same and, in an attempt to avoid a collision, accelerated his automobile in the hope of passing beyond the path of defendant’s car. The effort was futile. Throughout the trial of the cause and upon appeal the defendants have urged that plaintiff was guilty of contributory negligence in the operation of his automobile and they point specifically to the asserted impropriety of plaintiff’s conduct in speeding up his car in an attempt to get beyond the path of defendant’s car. This, they contend, was not the course that a reasonable and prudent person would have pursued finding himself in a like position of imminent peril. On the contrary, they urge that a reasonable and prudent person under like circumstances would have undertaken to stop his car in the manner and within the distance which plaintiff testified he could have stopped, had he been so inclined, immediately prior to the collision. Defendants insist that the issue as to the reasonableness and prudence of plaintiff’s conduct in the face of imminent peril should have been submitted to the jury under proper instructions. They then refer to an instruction, given at the request of plaintiff, which, in effect, directed that if the jury should find from the evidence that the plaintiff had entered the intersection in a lawful manner and at a lawful speed, and after so entering had observed for the first time that he was placed in a position of apparent danger as a result of the defendant’s ear being operated in a negligent manner and at an unlawful rate of speed, and if they should find that in an effort to extricate himself from such danger the plaintiff "failed to act in such manner as a careful and prudent person would have done under the circumstances, then it was not negligence or contributory negligence on his part in driving ahead in an effort to get out of the path of the car driven by the defendant, Cornelia Fairbanks”.