Lam Ong v. Pacific Motor Trucking Corp.

WOOD, J.

Plaintiff obtained a jury’s verdict in the sum of $5,000 to compensate for the wrongful death of Lim Duck Ning, alleged to have been caused by the negligence of defendants. The trial court granted the motion of defendants for judgment notwithstanding the verdict. Upon appeal the judgment was reversed with instructions to the superior court to enter judgment in accordance with the verdict. The facts are set forth in the opinion on the former appeal.

(Lam Ong

v.

Pacific Motor Trucking Corp. et al.,

10 Cal. App. (2d) 329 [51 Pac. (2d) 1112].) It was held on that appeal that there was sufficient evidence to establish heir-ship and that on the evidence introduced it was the jury’s function to determine the question of contributory negligence. Upon receipt of the

remittitur

the superior court entered judgment in favor of plaintiff, and defendants now appeal from this judgment, basing their appeal upon the claim that the court erred in its instructions to the jury.

Defendants contend that they were prejudiced by the giving of an instruction that deceased was presumed to have exercised reasonable care for his own protection and safety. Many decisions have been cited in the briefs in which the giving of this instruction has been discussed. We are satisfied, however, that the decision in the leading ease of

Smellie

v.

Southern Pac. Co.,

212 Cal. 540 [299 Pac. 529], disposes of defendants’ contention. In that case Mr. Smel

[276]

lie was riding on a truck driven by defendant Ireland. As the truck approached a railroad crossing a freight train passed, and as soon as it had cleared the crossing Ireland started his truck in an attempt to cross the main track. The truck was hit by a passenger train which was traveling on the main track at a high rate of speed. Smellie’s heirs sued both the railroad company, and the driver of the truck. Mr. Ireland was called as a witness for plaintiffs under section 2055 of the Code of Civil Procedure. Upon cross-examination he testified that the deceased, who was sitting by his side, said: “It is all clear, let’s go.” Thorough consideration was given to this case by the court, both in department and in bank, and in an exhaustive and well-reasoned opinion the court not only held that plaintiffs were not bound by the testimony of defendant Ireland under the circumstances, but also that regardless of the status of the witness under section 2055 his testimony was not sufficient to deprive the plaintiffs of the right to an instruction similar to the one attacked by defendants on this appeal. The court quoted with approval from the decision in th§ case of