Angier v. Bruck

SHAW, J. pro tem.

Defendants appeal from a judgment for $5,000 entered against them on the verdict of a jury, in an action brought by plaintiff to recover for injuries suffered by her in a collision between an automobile in which she was riding and another automobile owned by defendant Brack and driven by defendant Platt.

The car in which plaintiff was riding was owned by her, and was, at the time of the collision, being driven by her son, Raymond Angier, at her request and under such circumstances as unquestionably to make him her agent, whose negligence in so driving would be imputable to her. The car of defendant Bruck was being driven by defendant Platt with her consent, and she was therefore liable for his negligence to the extent of the verdict given here. (Yeh. Code, § 402.) The collision occurred in the intersection of Livonia Street, which runs north and south, and Pickf ord Street, ■ which runs east and west. Each street is thirty feet wide between curbs. Plaintiff’s car was going south on Livonia Street, and defendant’s car was going west on Pickf ord Street. The collision occurred on the west side of Livonia Street, at or about the center of Pickford Street, the front end of

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defendant’s car striking the left side of plaintiff’s car. These facts are undisputed, but on practically all other matters relating to the collision the evidence is conflicting. The further details of it, so far as necessary to an understanding of the points made, will be stated in discussing those points.

Among the defenses pleaded by defendants are contributory negligence, both of plaintiff personally and of Raymond Angier, who was driving her ear. The jury found against both of these defenses. Defendants do not contend that the evidence is legally insufficient to support such findings. The only points made by them are that three instructions relating to these defenses are erroneous, that the evidence as to contributory negligence, especially that of plaintiff’s son, is very closely balanced, and that therefore the giving of these instructions is ground for a reversal.

The first instruction complained of, designated as No. 26, declared that “if plaintiff’s driver, Raymond Angier, exercised ordinary care, then plaintiff would not be guilty of the slightest negligence.” The objection made to this instruction is that it ignores and eliminates from consideration the possibility that plaintiff herself might have been negligent. In view of the defenses pleaded, this objection is well taken. While plaintiff would be chargeable with Raymond Angier’s negligence, he being her agent, yet, since she was in the car which he was driving, she might also be personally guilty of negligence contributing to the accident. We need not decide whether this error was prejudicial, for the judgment must be reversed on another ground and the error will doubtless not be repeated on a new trial.