Van Noy v. Frank

ROTH, J.,

pro tem.

The record in this ease shows that plaintiff and appellant, Phil Van Noy, a minor, was riding in a Ford roadster, which was being operated by his brother, the owner thereof, in a southerly direction on Norton Avenue, in the city of Los Angeles. As the Ford crossed the intersection of Norton and Second Street, it was struck at the right, rear portion thereof by an Oldsmobile operated and driven in an easterly direction on Second Street by the respondent. The collision overturned the Ford, and appellant suffered various injuries as a direct consequence. An action was started by appellant through his guardian

ad litem

for damages, and trial was had before a jury, which resulted in

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a verdict for defendant. Judgment was duly entered thereon, and from that judgment this appeal is taken.

Appellant calls our attention to a number of errors. We do not feel that it is necessary to treat all of them, since one of the errors complained of is of such a nature that a reversal is mandatory. This error is the refusal of the trial court, despite request of the appellant submitted in due form, to instruct the jury on the doctrine of imputed negligence. Appellant requested and the court refused to give the following instruction:

“If you find from the evidence in this case that the Ford automobile mentioned in this case was, at the time of said alleged collision, owned and operated by Dorris Van Noy, and that the plaintiff Phil Van Noy neither drove the said automobile nor exercised any control or management over it whatever, then you must also find that on said occasion said plaintiff was the guest of said Dorris Van Noy, and in that event, negligence of said Dorris Van Noy, if any there was, could not under the law of negligence be imputed to the said Phil Van Noy.”

The context of the requested instruction is not criticized by the- respondent, and we do not find in any of the instructions given by the court or in the instructions when read as a whole, anything said or suggested about the doctrine of imputed negligence, as requested by appellant, or otherwise. Indeed, some of the instructions of the court when considered in the light of the whole charge given to the jury, suggest that negligence, if any, of Dorris Van Noy was imputable to appellant. Thus, the court instructed the jury that, “if you find from the evidence that the plaintiff was himself negligent, and that such negligence contributed proximately, no matter how slightly, to the happening of the accident, plaintiff cannot recover, and in such event your verdict will be in favor of defendant”.