Beuttler v. Mann

STURTEVANT, J.

In an action to recover damages for personal injuries the jury returned a verdict in favor of the plaintiff and from the judgment based thereon Richfield Oil Company of California, a corporation, Richfield Oil Company, a corporation, and G. Barone have appealed.

On the evening of the 23d of January, 1927, the defendant A. IT. Mann was driving a Ford truck south on the state highway at a point immediately south of the bridge across San Benito River. The plaintiff was seated at his right and was riding with him. When they reached the point above mentioned the defendant G. Barone, as the employee of the corporate defendants, was driving on oil truck, with trailer attached, in the same direction. The Ford truck collided with the rear end of the trailer and the plaintiff was injured. He commenced his action against A. H. Mann, who was driving the Ford truck, and against G. Barone and the latter’s corporate employers, charging all of them with negligence. On a. former trial the jury returned a verdict in favor of the defendant A. IT. Mann. In presenting their evidence the parties respectively claimed that the other party was guilty of several different acts of negligence. The plaintiff claimed that Barone and his employers

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were guilty of negligence because (1) in violation of the statute (sec. 99, California Vehicle Act), the oil truck and trailer did not have rear lights and (2) that said truck and trailer were at the time of the accident parked on the traveled portion of the highway and not off thereof as required by the statute (sec. 136). The defendants claimed that the plaintiff was guilty of contributory negligence (1) for continuing to ride with a driver after he knew the driver was drunk; and (2) for continuing to ride with a driver after he knew the driver was not a careful driver because after dark he drove at a high and excessive rate of speed although his headlights were so defective he could not see objects in the highway.

Acting upon the request of the plaintiff the trial court gave two instructions on the subject of sudden peril. Neither one contained a limitation that that principle may be relied on only by one who is himself free" of negligence. The defendants assign both instructions as prejudicial error. Under the facts of this case the contention may not be sustained. Before Mann overtook the trailer there was no evidence that a sudden peril existed at any time. No claim was made that at that time the plaintiff should have jumped to save himself. When the plaintiff first saw the trailer he testified he was twenty feet away and traveling thirty miles per hour. Therefore neither instruction was addressed to any issue made by the pleadings nor to the proof. The driver, Mann, was not suing as plaintiff but he was being sued. Furthermore, he had been dismissed by the verdict of another jury. The instructions complained of were, as between the parties then before the court, foreign to • the case. Freely conceding that both instructions were incomplete statements of the law, neither could have been a help nor a hindrance to the jury in arriving at a verdict on the issues that were before that body. Such errors are not prejudicial and do not warrant a reversal on appeal.