Swartz v. Feddershon

California Court of Appeal May 29, 1928 No. Docket Nos. 5808, 5809.Published

Before: Shaw

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Holding. The court held that the evidence supported the jury's finding that the plaintiffs were not contributorily negligent as a matter of law, as they were entitled to presume the defendant would obey traffic laws, and that the defendant's claims of instructional and evidentiary error were meritless.

Issues

Whether the plaintiffs were guilty of contributory negligence as a matter of law for failing to continuously observe the defendant's vehicle.
Whether the trial court erred in refusing requested jury instructions without the appellant providing the full record of instructions given.
Whether the trial court erred in admitting testimony of the defendant's admissions without a formal foundation.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It is not a sufficient predicate for a claim of error that instructions which properly state the law have been rejected. The assignment must go further and point out wherein the subject of the instruction was not in fact covered”

“Feddersohn was the defendant and no foundation as to time, place, and persons present was necessary before evidence of his admissions could be introduced.”

SHAW, J.,

pro

tem.

These cases were tried together in the superior court, and in each case judgment was rendered against the defendant, from which he appeals. Both appeals are submitted to us on the same record and the same briefs. The eases arose out of a collision between two automobiles, one driven by the defendant, and the other driven by the plaintiff Guy 0. Swartz, in which his wife, the plaintiff Jennie J. Swartz, was riding. In one of the cases Guy 0. Swartz sued alone as plaintiff for damages caused by personal injuries suffered by him in this collision, for damages caused to him by injuries to his wife, and for damages to his automobile. In the other case both plaintiffs sued for personal injuries received by the plaintiff Jennie J. Swartz.

The points made in support of both appeals are the same. The defendant contends that the evidence established contributory negligence of both plaintiffs as a matter of law, and, hence, that his motion for a nonsuit should have been granted or the verdict, should have been in his favor; that the evidence does not support the verdict; and that the court erred in refusing to give certain instructions requested by him and in overruling his objection to certain evidence offered by the plaintiff. All of these points, except those relating to instructions and rulings on evidence, may be considered together.

The evidence herein was conflicting in many respects. From the verdict we must conclude that the jury took the view of it most favorable to the plaintiffs. Taking such a Anew and resolving all doubts and inconsistencies for the plaintiffs, they were warranted in finding the following facts. In discussing these facts we shall, except as otherwise indicated, refer to the plaintiff Guy 0. Swartz, who Avas driving his automobile, simply as “plaintiff.”

The collision occurred in the forenoon at the intersection of Sunset Boulevard, on which the plaintiff was driving in a northerly direction, and Temple Avenue, on which defendant was driving in an easterly direction. Both of these highways were in a rural community; Sunset Boulevard was paved and Temple Avenue Avas unpaved, but was graded and graveled. Each of them was sixty feet wide between prop

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Swartz v. Feddershon

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SHAW, J.,

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