Hirtz v. Porter

DRAPER, J.

This is an action for damages for personal injuries sustained by plaintiff when her automobile was struck from the rear by a cement mixer truck of defendant corporation, driven by defendant Porter. The two vehicles were in the center lane of three northbound lanes on El Camino Real in Redwood City. The accident occurred in the early afternoon of a clear day in August. There was evidence from which the jury could conclude that plaintiff stopped her ear rather suddenly some 25 feet short of the crosswalk on James Avenue, first applying her brakes at a time when the signal for El Camino traffic was still green. Jury verdict was in favor of defendants, and plaintiff appeals from judgment thereon.

Plaintiff asserts error in the giving of each of three instructions. Two of the challenged instructions read as follows:

“. . . Ordinarily, the burden rests upon the defendant to prove contributory negligence, the exception being where such contributory negligence appears from the testimony offered on behalf of the plaintiff. In other words, the burden of proof is met as to contributory negligence if it is shown by the evidence in the ease regardless of who introduces the evidence.” and

“If you find from the evidence that the plaintiff was guilty of the slightest amount of negligence which proximately contributed to the accident in question and the resulting damage, your verdict must be for the defendant.”

Precisely the same instructions are fully considered in

Hickenbottom

v.

Jeppesen,

144 Cal.App.2d 115, 122-123 [300 P.2d 689], and are held to be erroneous, although not prejudicially so. Here the jury was otherwise given full and correct instructions as to the burden of proof of contributory negligence and, as in Hickenbottom, was properly instructed as to the definition of contributory negligence and proximate cause. Plaintiff emphasizes that the instructions are the same as those presented by the same counsel in Hickenbottom. However, the decision on appeal in that case was not rendered

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