Noble v. Miles

[726]

PULLEN, P. J.

This is an action by plaintiffs arising out of a collision between the automobile of plaintiffs and a truck belonging to certain of the defendants, and driven by Oftedal, also a defendant herein. The issues were submitted to a jury, who found for plaintiffs. The question of law involved as framed by appellants is, “Did the court commit prejudicial error in instructing the jury that the violation of any statute constituted negligence as a matter of law, without taking into consideration the amendment of section 113 (d) of the California Vehicle Act of 1931?”

The following instruction was given by the court at the request of the plaintiffs: “If you shall find from the evidence that defendant, Oftedal, or the driver of the truck following his, prior to and at the time of the collision were violating any provision of the California Vehicle Act referred to in these instructions, then such truck driver was guilty of negligence as a matter of law, and if such negligence solely and proximately caused the collision, your verdict must be in favor of the plaintiffs, John Stenovich, Cornelius Noble and Pansy H. Noble.”

The following instruction was given by the court at the request of the defendants: “You are instructed that the California Vehicle Act in force and effect at the time of the happening of this accident, in reference to speed of motor vehicles, provided: Fifteen miles an hour in traversing or going around curves or corners of a highway when the driver’s view is obstructed within a distance of two hundred feet along such highway in the direction in which he is proceeding.”

Counsel do not question the correctness of these instructions standing alone, and as abstract principles of law, but appellants do claim the two instructions, when read together, were erroneous in view of an amendment to section 113, subdivision (d), of the California Vehicle Act, which was amended in 1931, to read as follows: “In any civil action the driver of a.vehicle who has operated such vehicle at a speed in excess of the miles per hour set forth in subdivision (b) applicable at the time and place shall not be deemed to have been negligent by reason thereof as a matter of law, but in all such actions the burden shall be upon the opposing party to establish that the operation of such vehicle at such speed constituted negligence.”