Harman v. Bay Cities Transit Co.

McCOMB, J.

From a judgment in favor of plaintiffs after trial before a jury in an action to recover damages for personal injuries, defendant appeals.

Viewing the evidence in the light most favorable to plaintiffs (respondents), the essential facts are:

May 8, 1938, at about 10:22 P. M., plaintiff Thomas E. Harman was driving with his wife in an easterly direction on Colorado Street just west of its intersection with Fourth Street in the city of Santa Monica. At about the same time defendant was operating its bus in a northerly direction on Fourth Street and approaching the same intersection. Plain

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tiff came to a boulevard stop before entering the intersection. He looked to his right and saw defendant’s bus approximately 250 feet away, approaching the intersection at an indeterminate speed. He then proceeded in an easterly direction into the intersection at a speed of approximately five miles an hour, believing that he had ample time to pass in front of the bus. When east of the center line of Fourth Street defendant’s bus collided with the center of the automobile in which plaintiffs were riding, causing them personal injuries.

Defendant relies for reversal of the judgment on these propositions:

First: Plaintiff Thomas E. Harman was contributorily negligent as a matter of law.

Second: The trial court committed prejudicial error in striking from the following instmctions proposed by defendant the portions thereof underscored:

(a) “Section 552 of the Motor Vehicle Code of the State of California provides as follows:

“ ‘Vehicle entering through highway. The driver of any vehicle which has stopped as required by this code at the entrance to a through highway shall yield the right of way to other vehicles which have entered the intersection from the through highway or which are approaching so closely on the through highway as to constitute an immediate hazard, blit said driver having so yielded may proceed and the drivers of all other vehicles approaching the intersection on the through highway shall yield the right of way to the vehicle so about to enter or cross the through highway.’