Aurenz v. Los Angeles Railway Corp.

McCOMB, J.,

pro tem.

Plaintiff appeals from a judgment in favor of defendants after a trial before a jury.

Viewing the evidence most favorable to defendant

(Ah Gett

v.

Carr,

3 Cal. App. 47, 48 [84 Pac. 458]), the facts in the instant case are:

Cypress Avenue runs in a northerly and southerly direction in the city of Los Angeles where it intercepts Future Street, which lies in an easterly and westerly direction. On February 28, 1936, plaintiff while driving westerly on Future Street was struck at the intersection by defendant’s street ear traveling in a southerly direction. As a result of the accident plaintiff suffered serious injuries.

The questions presented for determination are these:

First: Was it prejudicially erroneous for the trial court at

defendant,’s

request to instruct the jury as follows:

“It was the duty of Carrie Aurens to look and listen in approaching the railroad crossing and to look at such point where such looking would be effective. If there was any obstruction to her view, then common prudence under such circumstances would require that she come to a full stop before attempting to cross the track and allow said southbound car to move out of her field of vision or that she look immediately upon being able to look past such obstruction and that she see and heed that which might be approaching on the railroad tracks within her range of vision, and if she failed in these respects, she was guilty of negligence and if such negligence contributed proximately in any degree to the cause of the accident, then the plaintiff cannot recover and your verdict must be against her and in favor of the defendant.”

Second: If the foregoing instruction was erroneous, did the trial court correct this error by withdrawing the instruction from the consideration of the jury?

The first question must be answered in the affirmative. This instruction was prejudicially erroneous for two reasons:

(1) The jury was misinstructed as to the law, in that the instruction required the plaintiff to come to a full stop before attempting to cross defendant’s street car track. This is not