Konig v. Lyon

WELCH, J.,

pro tem.

For personal injuries received plaintiff by his guardian

ad litem

brings this action to recover damages for the negligence of defendants. The case was tried before the court with a jury and plaintiff obtained a verdict. From the judgment defendants appeal.

The plaintiff, a boy of twelve years of age, was on December 28, 1917, riding a bicycle northerly on Fern Street, in the town of Watts, Los Angeles County, and the truck of the defendants was coming southerly on the same street, when a collision took place between the boy and the truck. The boy’s left arm was seriously injured and his face cut. No question is raised as to the sufficiency of the evidence to

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sustain the verdict as to the negligence of the defendants, but the appellants contend that the evidence shows that “plaintiff was guilty, of contributory negligence proximately contributing to some extent to the cause of the injury as a matter of law, and that the court erred in instructing the jury.”

On the question of contributory negligence the court fairly and correctly charged the jury. It instructed the jury on the law concerning every claim made by defendants as to the contributory negligence of plaintiff. Among other instructions on the subject of contributory negligence it charged the jury that if it believed that plaintiff’s collision with a companion’s bicycle was the proximate cause, the efficient cause of the accident, without which the accident would not have occurred, then the plaintiff would not be entitled to recover. “If the plaintiff was guilty of contributory negligencé, no matter how slight, there can be no recovery, even though the defendant was guilty of negligence, because yon cannot compare the negligence of the parties.” Certainly these instructions cannot be objected to by the defendants and appellants. Under these instructions the jury found against the appellants on a conflict of direct and circumstantial evidence, and- therefore the verdict and judgment cannot be reviewed here on that point.

The doctrine of the last clear chance has no application in this case. If it has, the rule would apply with more pertinency to the acts of the driver of the truck than to those of the plaintiff. Bach saw the other approaching at a distance of about four blocks, or eight hundred feet. Bach held serenely to his course. If the driver was driving any part of his truck to the left of the center line of the road, in the line of travel of the plaintiff while on his right side of the street, it was his duty under express law to turn to his right and travel wholly on the right side of the road when he was within three hundred feet of the plaintiff coming toward the truck. The driver of the truck sounded no alarm or warning of his intention to hold his course. The plaintiff testified that he did not change his course until within about ten feet of the truck, for the reason that he momentarily expected the truck to turn out of his (plaintiff’s) right of way and to get on to its own side of the street. This he had a right to expect. (Sections 20a and