Downey v. Bay Cities Transit Co.

McCOMB, J.

From a judgment in favor of plaintiff after trial before a jury in an action to recover damages for injuries resulting from a collision between a vehicle driven by plaintiff and a bus driven by defendant Brady and owned by defendant Bay Cities Transit Company, defendants appeal.

Facts : On October 7, 1947, plaintiff was driving his car at about 15 miles per hour in a northerly direction on Fourth Street near its intersection with Broadway in the city of Santa Monica. At the same time defendants were operating a bus at about 7 miles per hour in a southerly direction on Fourth Street and made a quick turn in an easterly direction on Broadway, striking plaintiff’s automobile with resulting injuries to plaintiff. At the time the driver of defendants ’ bus turned east onto Broadway the driver was talking to a passenger in the bus and looking to the west.

Questions : First:

Did the trial court commit prejudicial error in adding the last paragraph to the following instruction which had been requested by plaintiff ?

“If you should find from the evidence that the traffic controlling signal device, controlling north and south traffic at the intersection of 4th and Broadway Streets, changed from ‘go’ to ‘stop’ just as either vehicle involved in this accident was entering the intersection, or when it was so close that to stop immediately would be futile, then I instruct you under such circumstances no duty was imposed upon either driver to bring their vehicle to a stop in response to such signal, but they might, still exercising due care under all of the circumstances, proceed on into the intersection in an endeavor to cross the same.

“However, when danger is apparent to him or would be apparent to him, or would be apparent to a person of ordinary prudence in the same situation, he is not excused from exercising ordinary care to avoid a collision, even though the danger is created by one who enters or appears about to enter the intersection against a stop signal.”

This question will not be considered for the reason that the rule is established that in the absence of a contrary showing in the record it is presumed upon appeal that an instruction was given at the request of appellant (in this case

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