Leader v. Atkinson

WOOD (W. J.), J.

Plaintiff commenced this action to recover damages for injuries which he suffered when struck by defendants’ automobile. The driver of the ear, defendant Eleanor Atkinson, who has since become Mrs. Wallis, was a minor at the time of the accident. The other two defendants are the parents of Mrs. Wallis, both of whom signed their daughter’s application for a driver’s license. Plaintiff recovered a judgment, from which defendants have appealed.

Between the hours of 8 and 9 o’clock in the evening of January 19, 1940, an accident occurred involving two automobiles on the north side of Venice Boulevard near its intersection with Vineyard Boulevard in the city of Los Angeles. As a result of this accident the two automobiles were left on the north side of the boulevard so that other cars passing used the south half of the boulevard. Plaintiff, a police officer, went to the scene of the accident with Officer Heinemann. They parked their ear close to the curb on the south side of Venice Boulevard, facing west. Officer Heinemann began taking pictures and at the time plaintiff was injured was thus engaged, standing near the front ends of the wrecked cars. There was a sharp conflict in the testimony concerning a number of the circumstances, and especially concerning the actions of plaintiff at the time he was struck by defendants’ car. Plaintiff testified he was in the center of the street directing traffic with a flashlight. A witness presented by defendants testified that plaintiff left the curbing and walked without pausing until he came in contact with the left front fender of defendants’ car.

It is contended that the court erred in instructing the jury as follows: “ It is the duty of the driver of an automobile where the view is obstructed to see persons on the road in front of his automobile.” This instruction is so prejudicially erroneous as to require a reversal of the judg

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ment. As a general rule it is the function of the jury to determine whether a driver of a motor car has been negligent in failing to see an object in the road in front of him in time to avoid striking it. The matter becomes a question of law for the court only in cases where the object in the road is so plainly visible that reasonable minds could not differ as to the duty of the driver to have seen it.