Arentz v. Blackshere

DRAPER, P. J.

Plaintiff pedestrian appeals from judgment entered upon jury verdict for defendants.

Plaintiff crossed McArthur Boulevard at 35th Street, Oakland, with the green light. She travelled from north to south. Defendant driver, son of the other two defendants, was travel-ling north on 35th. He stopped behind two ears at the signal at McArthur. When it turned green and the other ears cleared the intersection, he entered it, made a left turn on McArthur, and his car struck plaintiff. The evidence is in conflict as to whether she was in the marked crosswalk, walking, or was

[640]

outside it, running. Thus a verdict either way would find support, and no issue is raised as to sufficiency of the evidence.

Plaintiff offered, and the court rejected, an instruction that both parties were “chargeable with the exercise of ordinary care, but a greater amount of such care was required of the defendant motorist ... by reason of the fact that he was driving ... an automobile which is an instrumentality capable of inflicting serious . . . injuries. ...”

Refusal of the identical instruction has been held to be error

(Johnson

v.

Popso,

194 Cal.App.2d 449 [14 Cal.Rptr. 834];

Rubalcaba

v.

Sweeney,

168 Cal.App.2d 1 [335 P.2d 157]). A decision of the Supreme Court

(Cucinella

v.

Weston Biscuit Co.,

42 Cal.2d 71 [265 P.2d 513]) holds that refusal of a comparable instruction is erroneous, although it was not prejudicial under the facts there presented and in light of other instructions given.

Cucinella