Mahoney v. Murray

THE COURT. Action for damages for personal injuries. The case was tried before a jury. Judgment went in favor of defendant, and plaintiff appeals upon the ground that the jury was erroneously instructed.

The accident occurred on the highway near the city of Palo Alto. The highway at this place is forty feet wide with four lanes designated by three white lines. Vehicles traveling in a northerly direction used the two lanes on the easterly side of the highway, and vehicles going in a southerly direction used the two lanes on the westerly side. Appellant was a pedestrian attempting to cross from the east side to the west side of the highway. Respondent was driving an automobile in a northerly direction on the highway and in the traffic lane on the east side thereof commonly called the slow lane.

Appellant testified in substance that in walking across the highway he saw and watched respondent’s automobile approaching some 150 feet to his left and as he believed he had passed in front of it he turned his attention to another automobile coming from his right and was struck by respondent’s car when in the middle of the four traffic lanes. Respondent testified in substance that appellant ran across the highway in front of his ear and apparently seeing another automobile passing that of respondent’s on his left turned about and ran back toward the east side of the highway directly in front of respondent’s car and was struck; that at the time of the impact respondent was traveling at about ten miles an hour. The cause was tried by the court with a jury. A verdict was returned in favor of the defendant and judgment was rendered accordingly. From such judgment plaintiff brings this appeal. Some fifty-one instructions were given by the trial court to the jury and appellant claims four of these to be erroneous.

It is first argued that -the .instruction numbered forty-one is erroneous. It is as follows: “I instruct you that [209]where the proof considered as a whole is even as to whether the plaintiff was at fault, or the defendant was at fault, then in that event I instruct you that the plaintiff has not made out his case, and it is your duty to return your verdict against the plaintiff and in favor of the defendant.” It is contended that this is a formula instruction directing a verdict in favor of defendant under the circumstances therein recited and that as it omits any reference to the essential element of proximate cause it is erroneous. Formula instructions which purport to recite the facts of a case and direct the findings of a verdict in accordance therewith, but which omit essential elements constituting a complete defense to the action, have been repeatedly criticised by the courts. The challenged instruction omitted any reference to the element of proximate cause and failed to instruct on the burden of proving contributory negligence. In other instructions, however, the jury was fully and fairly instructed on the subject of proximate cause and contributory negligence. In view of the clear and correct instructions given to the jury on the omitted essential elements we are unable to say that the jury was misled by the challenged one. (Douglas v. Southern Pac. Co., 203 Cal. 390 [264 Pac. 237]; Barham v. Widing, 210 Cal. 206, 216 [291 Pac. 173]; Reuter v. Hill, 136 Cal. App. 67 [28 Pac. (2d) 390].) There is a disposition to relax the rigid application of the rule regarding formula instructions announced in some of the earlier cases. (Reuter v. Hill, supra.)