Broun v. Blair

WOOD, J.

Defendant appeals from an order in general terms granting plaintiff’s motion for a new trial after judgment was entered in favor of defendant upon the return of a jury’s verdict.

Plaintiff seeks to recover damages resulting from the death of her son, Percy H. Broun, who was killed when he was struck by an automobile driven by defendant. The accident occurred at the intersection of Main and Second Streets in the city of Alhambra at about 7:30 P. M., on January 29, 1937. The decedent was walking in a pedestrian zone at the intersection in question and was struck about twenty-four feet from the curb. The street was well lighted. Defendant testified that he did not see the decedent until he was under the ear. Other witnesses testified that decedent looked in both directions, to his right and to his left, before he was struck. Defendant presented three defenses, that he himself was not negligent, that the decedent was contributorily negligent and that the accident was unavoidable.

The court erred in refusing to give to the jury the following instruction requested by plaintiff: “I instruct you that defendant Blair, the driver of the automobile, and Percy Hamilton Broun, the" pedestrian, were both chargeable with only the exercise of reasonable care, but a greater amount of such care was required of the defendant Blair at the time of

[615]

the accident in question by reason of the fact that he was driving and operating an automobile which was capable of inflicting death or injury upon others upon the highway.” In

Vedder

v.

Bireley,

92 Cal. App. 52 [267 Pac. 724], the same instruction was requested a.nd the refusal of the trial court to give it was held to be erroneous. A similar ruling was made in

Pinello

v.

Taylor,

128 Cal. App. 508 [17 Pac. (2d) 1039] ;

Dawson