Graham v. Mead

California Court of Appeal Apr 10, 1958 No. Civ. 17601Published

Before: Dooling

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Holding. The court held that instructing the jury on the right-of-way rule for vehicles entering an intersection at the same time was prejudicial error because the evidence did not support the theory that the vehicles entered simultaneously.

Issues

Whether the trial court erred in instructing the jury on the right-of-way rule for simultaneous intersection entry when the evidence showed one vehicle entered first.

Disposition. reversed

Quotations verified verbatim against the opinion

“Even though an instruction is couched in proper language it is improper, if it finds no support in the evidence, and the giving of it constitutes prejudicial error if it is calculated to mislead the jury.”

“The record makes it clear that the jury was confused into believing that the right of way of the one entering the intersection from the right was in issue under the evidence”

DOOLING, J.

Plaintiffs, husband and wife, appeal from a judgment for defendants entered upon a jury’s verdict.

The action was for personal injuries and property damage to plaintiffs’ automobile. The automobile driven by plaintiff

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husband was struck broadside by an automobile driven by defendant in the intersection of Jefferson Avenue and Alston Way in Berkeley.

The court instructed the jury at defendant’s request:

“Vehicle Code section 550 reads as follows:

“ ‘Vehicle approaching or entering intersection.

“ ‘ (a) The driver of a vehicle approaching an intersection shall yield the right-of-way to a vehicle which has entered the intersection from a different highway.

“ ‘(b) When two vehicles enter an intersection from different highways at the same time, the driver of the vehicle on the left shall yield the right-of-way to the driver of the vehicle on the right.’ ”

Appellants argue prejudicial error in the inclusion of subdivision (b) of this section in the instruction on the ground that the evidence shows without contradiction that their automobile entered the intersection first.

The only evidence pertinent to this question was given by the two plaintiffs, the defendant under cross-examination (Code Civ. Proc., § 2055) and a police officer who examined the scene of the collision after it had occurred.

Appellants were driving easterly on Alston Way and respondent was driving northerly on Jefferson Avenue. Appellant husband testified that he was driving at a speed of 15 to 20 miles per hour and as he approached the intersection he saw respondent’s ear six or seven car lengths from the intersection. “I saw that .the car was a safe distance back so I continued on across the intersection.” The next he knew his wife said: “Look out. She is going to hit us” and the collision occurred.

Appellant wife testified that as they reached the intersection she saw a car to the right “so far back my husband and I both didn’t say anything about it.” The officer testified that the point of collision showed that appellants’ car was 28 feet into the intersection and respondent’s car 15 feet into the intersection. The officer measured 26 feet of skid marks made by respondent’s tires.

Graham v. Mead

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DOOLING, J.

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