Walter Minear Atkins v. Barnum

ARCHBALD, J.,

pro

tem.

Action by husband and wife to recover damages to the latter resulting from the alleged negligence of defendant. From a judgment in favor of plaintiffs, defendant has appealed.

An automobile driven by defendant north on Linden Street in Long Beach collided at the intersection of that thoroughfare and Eighth Street with a Ford truck driven by one Eva Bond, who was proceeding easterly on Eighth Street, with the result that the truck, struck on the right rear wheel, swung around to the northeast, striking plaintiff Annie Marie Atkins, a pedestrian crossing Eighth Street, seriously injuring her.

Appellant does not question the sufficiency of the evidence to support the verdict and judgment, but urges that the court erred in giving an instruction to the effect that exceeding a given speed made a

prima facie

case of negligence. The instruction complained of reads: “The law of this, state does not make the driving of an automobile at any particular rate of speed necessarily unlawful. The law merely provides that 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 speed as to endanger the life, limb or property of any other person. But the law does provide that if a person shall drive at a rate of speed in excess of fifteen miles an hour in traversing an intersection of highways when the driver’s view is obstructed, within the meaning of the law as stated in these instructions, such fact shall in itself constitute evidence of a violation of the law. Such fact shall not constitute conclusive evidence but will constitute evidence which must be taken into consideration by the jury along with the other evidence in a case in determining whether or not a person driving a vehicle over an intersection drove such vehicle at a careful and prudent speed and at such a speed as not to endanger the life, limb or property of other persons. Such fact will constitute

prima facie

evidence and will be sufficient to show negligence

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