McEachen v. Richmond

VAN DYKE, P. J.

Plaintiff, in the trial court, has appealed from a judgment entered upon a defense verdict in a personal injury action. Respondents did not take a cross appeal from that portion of the judgment entered upon an adverse verdict on their cross-complaint.

The accident out of which this action arose occurred at night at an intersection of a two-laned state highway and a county road. Both appellant and respondents were proceeding north on the state highway. Respondent’s vehicle was being driven by Elizabeth Richmond, who will hereinafter be referred to as the respondent. She was following a truck and trailer, which in turn was following appellant’s automobile. As all three vehicles approached the intersection, respondent pulled out to pass, and while still alongside the truck and trailer and about 90 feet distant from the intersection, she saw the blinker lights on appellant’s automobile signaling for a left turn. Prior to that time she had not seen appellant’s vehicle, since it was traveling in front of the truck and trailer. Respondent applied her brakes, but was unable to avoid striking the rear of appellant’s automobile as it was leaving the intersection. There was evidence that appellant, while approaching the intersection, had driven away from the center line and toward the edge of the highway, from which position she made her left turn, thus violating section 540, subdivision (b) of the Vehicle Code, which requires the driver of a vehicle intending to turn left at any intersection to approach the intersection in the extreme left hand lane lawfully available

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to traffic moving in the direction of travel of snch vehicle and after entering the intersection to make the left turn so as to leave the intersection in a lane lawfully available to traffic moving in such direction upon the roadway being entered. There was also evidence that appellant did not violate said section. However, there was no conflict as to the violation by respondent of section 530 of the Vehicle Code, which provides : “No vehicle shall at any time be driven to the left side of the roadway when approaching within one hundred feet of or when traversing any intersection.” By her own testimony, respondent was guilty of violating that section.

In support of her appeal, appellant contends that in the situation presented here, including the admitted violation by respondent of section 530 of the Vehicle Code, it was error for the trial court to instruct the jury that: 1 ‘ The mere fact that an accident happened, considered alone, does not support an inference that some party, or any party, to this action was negligent.” The instruction was taken from California Jury Instructions, Civil, Number 131. It has often been given and approved, and in the form used here has not been condemned save in those cases wherein res ipsa loquitur is applicable. Appellant cites these cases and earnestly argues that they are applicable here where respondent’s negligence is presumed from her conceded violation of the applicable rule of the road. Appellant cites and relies upon