Silveira v. Siegfried

THE COURT.

Action to recover damages suffered by plaintiff in an automobile collision. The accident occurred at or near the intersection of Coleridge and Waverly Streets in the city of Palo Alto. There was a conflict in the evidence as to the rate of speed the different cars were traveling when they entered the intersection, and also as to which entered the intersection first. Plaintiff recovered judgment against defendant based on the verdict of a jury in the sum of $5,000. Defendant moved for a new trial on all the statutory grounds. The motion was denied. This is an appeal from the judgment and order.

The appeal is based solely upon claimed erroneous instructions given to the jury at the request of respondent. The complaint alleges negligence. This was denied by the answer, and contributory negligence was pleaded as a separate defense. The trial court gave numerous instructions upon the subject of contributory negligence, to the correctness of which no complaint is made. It is claimed, however, that the court gave other instructions upon the subject which omitted or misstated this defense. Upon this subject, except as hereinafter stated, the court fully and fairly instructed the jury. Where a jury is repeatedly instructed, as here, in clear and explicit language on the subject of contributory negligence, it cannot reasonably be said that the jury was misled to the prejudice of appellant, because in other instructions upon the subject of defendant’s negligence the court omitted to say anything upon the subject of the contributory negligence of the plaintiff. The instructions are to be taken as a whole.

(Stephenson

v.

Southern Pac. Co.,

102 Cal. 143 [34 Pac. 618, 36 Pac. 407];

Swartz

v.

Acme Express & Drayage Co.,

102 Cal. App. 615 [283 Pac. 358].) At the request of respondent, however, the court gave the following instruction: “You are instructed that there is no evidence before you in this case of any contributory neg

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