Dawson v. Lalanne

WOOD, J.

Plaintiff, a pedestrian, was crossing La Salle Street in Culver City when he was struck by an automobile driven by defendant. He brought this action for damages claiming negligence on the part of defendant. From a judgment in defendant’s favor entered upon the return of a jury’s verdict he prosecutes this appeal.

Plaintiff complains of the ruling of the trial court in refusing to give to the jury an instruction in the following language: “You are instructed that the plaintiff and the defendant were both chargeable only with the exercise of ordinary care, but a greater amount of such care was required

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of the defendant at the time of the accident in question by reason of the fact that he was driving and operating an automobile, which is an instrumentality capable of inflicting serious and often fatal injuries upon others using the highway.” This instruction clearly states the rule of law applicable to the facts of the case and has been approved in a number of cases. In

Weihe

v.

Rathjen Mercantile Co.,

34 Cal. App. 302 [167 Pac. 287], the court said: “Nor do we think the court misdirected the jury in reading to them from the case of

Raymond

v.

Hill,

168 Cal. 473, 483 [143 Pac. 743], as follows: ‘While both parties are charged with the same degree of care the amount of care exacted of the driver of a motor vehicle is far greater than the amount of care exacted of the foot passenger. ’ As said by counsel for the plaintiff, the degree of care exacted of both users of the highway is the same; the amount of care must of necessity vary in order that the degree may not. The driver of a motor vehicle—a dangerous instrumentality capable of inflicting fatal injuries—is charged with a greater amount of care than the pedestrian, in order that he may be bound to the same standard of ordinary care.” In

Vedder