Sinclair v. Pioneer Truck Co.

KERRIGAN, J.

This is an appeal by defendants from a judgment in favor of the plaintiff in an action for personal injuries sustained by reason of the alleged negligence of defendants, from which resulted a collision between an automobile operated by plaintiff and a truck driven by defendant Avery, an employee of his codefendants, at the

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intersection of Tenth, and B Streets, in the city of San Diego.

The sole point urged by the appellants relates to the giving or refusing of instructions to the jury. The defendants requested the court to instruct the jury as follows: “If the jury believe from the evidence that the plaintiff by .his own negligence directly contributed

in any degree

to the injury sued for, they will find for the defendants.” The court gave substantially this- instruction and several others on the subject of contributory negligence, omitting from each of them, however, the words “in any degree” included in the proposed instruction. It is urged that the court’s refusal to thus emphasize the measure of any contributory negligence chargeable to the plaintiff was error sufficiently prejudicial to entitle the defendants to a new trial. This contention is not maintainable. It is true that in some of the cases cited by the appellants this phrase is used in connection with the legal effect of contributory negligence, but it is nowhere held that it is an essential qualification of such negligence, but adds emphasis only. Where, as here, the court instructs the jury that if the plaintiff was negligent, and his negligence amounted to want of ordinary care, and contributed proximately to the injury, he cannot recover, such an instruction is sufficient.

In another instruction the jury were advised that “the contributory negligence which will bar recovery must be such as to establish that the plaintiff by failure to exercise the required amount of care proximately contributed to produce the injury complained of so that but for his concurring and co-operative fault the injury would not have happened.” This instruction is claimed to be erroneous, for the reason that no attempt was made by the court to define the phrase “required amount of care”; but the degree of care to be exercised by both parties was repeatedly stated to the jury, consequently the criticism of this instruction is wholly without merit.