Medeiros v. Soares

California Court of Appeal Oct 20, 1936 No. Civ. 10164Published

Before: Sturtevant

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Holding. The court held that the trial court's instruction regarding the presumption of due care, even if erroneous, was not prejudicial because the jury heard sufficient contrary evidence to render the presumption inapplicable. Additionally, the court held that the jury instructions regarding right-of-way under the California Vehicle Act were proper and not in conflict.

Issues

Whether the trial court's instruction on the presumption of due care constituted prejudicial error.
Whether the trial court erred in its instructions regarding right-of-way under section 131 of the California Vehicle Act.

Disposition. affirmed

Quotations verified verbatim against the opinion

“As shown on its face the instruction complained of was addressed to a contingency (the absence of evidence to the contrary) which did not arise. Therefore the effect of giving the instruction was merely to instruct on a subject that was not present”

“The two paragraphs do not conflict one with the other but both are to be given effect.”

STURTEVANT, J.

From a judgment awarding the plaintiff damages for injuries suffered in an automobile collision the defendant has appealed.

At about sunset on the evening of July 8, 1934, the defendant was driving southeast on the Bay Shore highway near Palo Alto. About the same time the plaintiff was driving southwest on University Avenue. In the intersection of' those roads their cars collided and for injuries suffered the plaintiff commenced this action.

The defendant contends that the plaintiff was guilty of contributory negligence. That contention is based on the

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claim that at a time when he was blinded by the rays of the setting sun the plaintiff drove forward and the collision complained of occurred. It is a sufficient answer to that contention to state that repeatedly the plaintiff testified the sun was not shining in his eyes as he drove forward and he did not drive forward while blinded by the rays of the sun. Moreover, the contention which the defendant now makes was alleged in his answer, was submitted to the jury under specific instructions, and was by the jury found in favor of the plaintiff and against the defendant.

Upon the request of the plaintiff the trial court instructed the jury as follows: “In the absence of evidence to the contrary, the law presumes that both parties did everything that reasonably prudent persons would have done under the circumstances for the protection of their own safety. The presumption that the plaintiff was not guilty of contributory negligence is, in itself, a species of evidence which continues with the plaintiff throughout the trial of this case and until overcome by contrary evidence. Such presumption must prevail and control your deliberations until and unless it is overcome by satisfactory evidence.” Calling our attention to the fact that the plaintiff took the stand and was examined and cross-examined on what care he exercised and that he called other witnesses who were also examined and cross-examined on the care the plaintiff exercised, the defendant claims any presumption on the subject was dispelled and that the instruction should not have been given. He cites

Mar Shee

Medeiros v. Soares

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STURTEVANT, J.

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