Morris v. Pacific Electric Railway Co.

THE COURT.

The plaintiff brought this action to recover damages for personal injuries suffered by him and for the wrongful death of his wife resulting from a collision of the plaintiff’s automobile with a freight engine operated by the defendant Preston, an employee of the defendant Pacific Electric Railway Company. Judgment went for the plaintiff and the defendants have appealed.

The accident occurred at approximately 2 o’clock on the morning of June 5, 1929, at a point where Central Avenue in the city of Los Angeles intersects the tracks of the defendant company. The conclusion we have reached makes it unnecessary to state the facts at great length. There was evidence from which the jury might reasonably conclude that the defendants at the time of the accident were negligent in their operation of the freight engine. The evidence addressed to the defense of contributory negligence was conflicting and would warrant a finding in favor of either party which finding, under settled principles, would be conclusive on appeal. However, the defendants were entitled to have the jury fully and properly instructed on such defense. As we shall presently show, they were not so instructed.

The plaintiff testified that he approached the intersection at a speed not in excess of thirty miles an hour. The defendants offered evidence tending .to establish that the plaintiff, when about seventy-five feet from the intersection, was operating his automobile between forty-five and fifty miles an hour. In view of this latter evidence the defendants contend that the court below erred to their prejudice when it refused to give the following requested instruction: “You are instructed that under the Motor Vehicle

[767]

Law of this state it was unlawful for any person to drive an automobile at a greater rate of speed than forty (40) miles per hour and if you believe from the evidence that the plaintiff Mr. Morris, at and just prior to the accident, was driving his automobile at a speed greater than forty (40) miles per hour, then he was negligent as a matter of law and if such negligence contributed proximately in the slightest degree to cause the accident, then plaintiff cannot recover.”

This instruction represents a correct statement of the law as it was at the time of the accident and at the time of the trial.