Harkey v. Luckehe

PLUMMER, J.

This action arose out of an automobile collision in which the respondents sought damages from the appellant, and the appellant sought damages from the respondents. The verdict of the jury denied damages to either of the parties. From the judgment entered thereon denying damages to the appellant upon her cross-complaint, this appeal is prosecuted.

The record shows the following facts:

Just preceding the collision between the automobiles driven by the respective parties, the appellant was driving her automobile upon a public highway toward the city of Gridley, at a point about four miles distant therefrom. The plaintiff' W. S. Harkey was driving an automobile belonging to his son, and was entering the highway referred to above from a private road. The plaintiffs allege that the appellant was driving at a rate of speed which constituted negligence, causing the accident. The appellant asserts she had the right of way, and that W. S. Harkey entered the highway without yielding the same. The appellant asserts that it became a question of fact as to whether appellant was driving at a rate of speed which constituted negligence on her part.

[132]

Upon' this appeal the appellant relies solely for reversal upon the giving of three instructions alleged to be erroneous and prejudicial. These instructions are as follows, to wit:

“While a person on a road ordinarily has the right of way over a person entering from a driveway, nevertheless, that does not mean that a person entering from a private road must wait for a car to pass that is further away than the distance that such car on the road could drive is proceeding at the legal rate of speed. The legal rate of speed at the point where said accident occurred was in the 2nd day of October, 1934, forty-five miles an hour. ’ ’

“While the driver of a motor vehicle is permitted to drive such vehicle at a speed of forty-five (45) miles per hour on a highway, if that driver exceeds forty-five (45) miles per hour, he is presumed to be negligent, but such presumption of negligence may be overcome and defeated by a preponderance of evidence that such excessive speed, if any, was careful and prudent under all the circumstances of the case.”