Coffey v. Slingerland

GOULD, J., pro tem. Plaintiff, a pedestrian, injured in a collision with a bicycle propelled by defendant Slingerland (at the time in the employ of defendant Winder), appeals from a judgment entered in favor of defendants after a jury trial. Reversal is sought solely for alleged errors in instructions to the jury.

The accident occurred at the intersection of Seventh Street and Broadway, Los Angeles. Plaintiff was crossing Broadway in a pedestrian zone; the bicyclist was riding south on Biroadway. There was a conflict of testimony as to whether plaintiff started across Broadway at the first sounding of the bell for the change of traffic or whether, as she testified, she waited for the second bell and the “Go” signal. Responding to this evidentiary conflict, the court gave instructions as to the effect to be given to a violation of the Los, Angeles city ordinance which by its terms forbids any person to enter an intersection until a green or “ Go ” signal is given. By one instruction the jurors were told that a violation of the traffic ordinance constitutes negligence, and that if such violation thereof proximately contributed in any respect to plaintiff’s injury she could not recover. Another instruction, requested by plaintiff, states that if the jury finds that plaintiff started across the intersection before the second bell of the traffic control signal rang, “then it is your duty to decide whether or not the plaintiff was negligent in so doing, and if you find from the evidence that the plaintiff exercised in crossing the said intersection the degree of care which a reasonably prudent person would have exercised in the same circumstances, then you must find the plaintiff not guilty of contributory negligence, notwithstanding your finding that plaintiff left the curb before the second bell sounded”. These two instructions as given were to some extent contradictory, [734]and the instruction requested by appellant was more to her than the circumstances in the case justified.'

In such cases as this the law in California is settled that violation of an ordinance or statute is negligence per se (Kellner v. Witte, 133 Cal. App. 231 [23 Pac. (2d) 1045]), the presumption of negligence arising from failure to perform a duty imposed by law (Giorgetti v. Wollaston, 83 Cal. App. 358 [257 Pac. 109]); but this presumption is not conclusive and may be overcome by evidence that such failure was excusable or justifiable (Berkovitz v. American River Gravel Co., 191 Cal. 195 [215 Pac. 675]), and to bar recovery it must of course be found that the negligence proximately contributed to the injury (Morgan v. Los Angeles Rock & Gravel Corp., 105 Cal. App. 224 [287 Pac. 152]). The instruction relating to this phase of the case should enunciate these principles, leaving it to the jury to determine from all the evidence whether or not there was a violation of the traffic ordinance, whether such violation was excusable or justifiable and whether it contributed proximately to the injury.