Sloan v. Original Stage Line, Inc.

THOMPSON (IRA F.), J.

This is an appeal from a judgment for the sum of $10,000 in favor of the plaintiff for personal injuries suffered by his ward and against the appealing defendant.

The grounds of the appeal may be stated as follows: (1) The doctrine of

res ipsa loquitur

was improperly applied, first, because the proof established negligence on the part of the co-defendant and second, because the complaint alleges specifically the negligent acts complained of, (2) that in addition to instructions embodying this doctrine the court gave other erroneous instructions and (3) that the verdict is excessive.

We are supplied with no brief by the respondent, who was a passenger on the bus of the appellant. However, it is sufficient to say that the evidence adduced in this case brings it squarely within the law announced in

Burke

v.

Dillingham,

84 Cal. App. 736 [258 Pac. 627], and the authorities there cited, in so far as the doctrine relating to the presumption of negligence is concerned. Also, the',testimony of the defendant Koenig was sufficient—stating, as he did, that the driver of the bus approached the intersection at a speed of about thirty-five miles an hour and ran into him while he was attempting to cross at five miles an hour— to authorize the jury to find that respondent was guilty of negligence. Also, it may be noted that practically all of the witnesses placed the speed of the bus considerably in excess of fifteen miles per hour.

The complaint alleges that “the defendant Original Stage Line, Inc., did then and there so carelessly, negligently, recklessly and unlawfully propel, operate, manage and control- said motor bus so as to cause the same to collide with the automobile of the defendant”. The quota

[319]

tion demonstrates that the complaint falls far short of setting out “specifically the negligent acts or omissions complained of”.

The instructions of which appellant complains are based upon the law relative to the right of way of vehicles entering an intersection. It is the contention of appellant that inasmuch as its bus was traveling upon a main or “Stop” boulevard, even though Koenig came to full stop before proceeding to cross, and although he approached “from the right”, that the bus was not required to yield the right of way. Appellant’s counsel says: “The purpose of the boulevard stop is to require that vehicles approaching a main highway be brought to a complete stop and to remain there until they can with safety get started across the intersection before cars traversing the boulevard enter thereon. To hold that the vehicle approaching from the right after having stopped at the boulevard stop sign would still be entitled to the right of way against those coming from the left along the main highway, and those at the left be required to wait until the other car- had started up again and passed, would be to seriously impede the traffic on the main artery and render ineffcct [ive] an important part of the purpose of the boulevard stop.” The accident here in litigation occurred February 24, 1928, and at that time the provisions of the California Vehicle Act with respect to the right of way contained no such exception as that which counsel would have us insert by a process of judicial legislation. We have no authority to enter this domain of government.