Coyne v. Whiffen

PARKER, J.,

pro

tem.

This is an appeal by the defendants from a judgment, rendered upon a verdict of a jury, in favor of plaintiffs and against the defendants in an action to recover damages for and on account of injuries sustained by respondent Myrtle Coyne in an automobile collision.

No point is raised as to the sufficiency of the evidence, appellants conceding that there was a conflict and that there was sufficient evidence before the jury to sustain the verdict. No complaint is made as to the rulings of the trial court on the admission or rejection of evidence, nor is there any claim of contributory negligence urged. The sole question presented involves the giving of two instructions offered by respondents and the refusal of the court to give an instruction requested by appellants.

[701]

The first instruction given to which attack is directed is as follows: “You are instructed that by the provisions of the statutes of California in force at the time of the accident in question, it was unlawful for the driver of any motor vehicle to drive at a rate of speed in excess of fifteen miles in traversing an intersection of highways when the driver’s view is obstructed. A driver’s view is deemed to be obstructed within the meaning of the statute when at any time during the last 100 feet of his approach to said intersection he does not have a clear and uninterrupted view of such intersection and of the traffic upon all the highways entering such intersection for a distance of 200 feet from such intersection. If you find from the evidence, therefore, that the view of the defendant, J. P. Whiffen, in approaching the intersection of La Brea avenue and Clinton street was obstructed within the meaning of the statute as above stated, and if you further find that in traversing the intersection said defendant, J. P. Whiffen, was then driving at a rate of speed in excess of fifteen miles, that said defendant was guilty of negligence, and if you further find that such negligence contributed directly, and proximately to cause the collision between the automobile driven by said defendant and the automobile in which the plaintiff Myrtle Coyne was riding, and that as a direct result thereof the plaintiff, Myrtle Coyne, sustained injuries, then your verdict must be for the plaintiff and against the defendant.” The instruction offered by appellants and refused by the court ties in with the argument on the one given, and we shall therefore consider the two together. The refused instruction reads: “Section 113 of the California Vehicle Act, in full force and effect at the time of the accident in question, provided in part as follows: ‘Restriction as to speed, (a) Any person driving a vehicle on the public highways of this state shall drive the same at a careful and prudent speed not greater than is reasonable and proper, having due regard to the traffic, surface and width of the highway, and no person shall drive any vehicle upon a public highway at such a speed as to injure the life, limb or property of any person. ’ Unless you find from a preponderance of the evidence that the defendants were violating the provisions of said section of the California Vehicle Act, you cannot find their speed to have been a negligent one.”