Barber v. Quatacker

BARNARD, P. J.

This is an action for damages for personal injuries sustained in an automobile collision. The accident occurred at the intersection of Fairview Avenue with Edinger Road, near Santa Ana. Edinger Road runs east and west and Fairview Avenue comes into it from the south, ending at its junction with Edinger Road. Both of these roads are paved. On the north side of Edinger Road and about opposite the east line of Fairview Avenue, a dirt road leads into a school yard. From a map drawn to scale, which is in evidence, it appears that the entrance to this school yard is about five feet in width. This private road into the school yard is so situated that; in order to enter it a person driving north on Fairview Avenue would, upon reaching this intersection, have to turn slightly to his right and cross Edinger Road.

On the occasion here in question the plaintiff drove north on Fairview Avenue and, as he reached the intersection, turned slightly to his right and crossed Edinger Road toward the entrance of the school yard. At the same time the defendants’ car was being driven westerly on Edinger Road. When the plaintiff’s car had almost reached the entrance to the school yard but while its rear wheels were still on the paved portion of Edinger Road, its rear portion was struck by the defendants’ car, resulting in certain injuries to the plaintiff. Each driver saw the other ear and the collision seems to have occurred because the plaintiff assumed that he could cross Edinger Road before the arrival of the defendants’ car, which he saw approaching from the east, and the driver of defendants’ car assumed that the plaintiff was going to proceed easterly on Edinger Road since he saw the plaintiff turn slightly to the right as he entered the intersection. A jury returned a verdict in favor of the defendants and they have appealed from an order granting the plaintiff’s motion for a new trial.

In its order granting a new trial the court said:

“ ... In Defendants’ Instruction No. 17, the Court instructed the jury that it is the duty of any person using a

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public highway in this state to at all times have a sharp lookout for traffic upon intersecting highways. Throughout the trial and during the argument, the fact was emphasized that the plaintiff had lost the sight of one eye. The foregoing instruction imposed upon the plaintiff a greater burden than the law requires. He is only required to use ordinary care and caution while operating his vehicle upon a public highway, and I believe that this instruction imposing a greater duty upon him than the law requires, together with the fact that he had lost the sight of one of his eyes, might have been misleading, and, for that reason it is the opinion of the Court that a new trial should be granted. ’