Lewin v. Margolis

WOOD, J. Defendants appeal from a judgment in plaintiff’s favor in the sum of $1500 entered upon the return of a jury’s verdict. On February 25, 1935, plaintiff was standing on the sidewalk close to the edge of the curb at the corner of Adams and Trinity Streets in the city of Los Angeles. Defendant Acosta was driving a truck owned by the other defendants westerly along Adams Street and as he approached the intersection of Trinity Street he suddenly swerved the truck to the right. The front wheels of the truck passed the curb and the rear wheels struck against the curb but did not pass over it. The body of the truck extended beyond the wheels in such a manner that there was an overhang varying in width at different parts of the truck. Some portion of the body of the truck struck plaintiff, who was injured by the impact. Defendant Acosta testified that as he drove along Adams Street at about a half block cast of Trinity Street he passed two automobiles which were running abreast, the drivers holding a conversation and proceeding very slowly; that after passing these automobiles he turned from the center of Adams Street to the right to a point where the rig-ht wheels of his truck were about ten feet from the curb; that one of the cars he had just passed, [748]a light sedan, caught up with him as he arrived at the east curb line of Trinity Street and “cut into” his path, forcing him to make a right turn. In their answer defendants deny negligence on the part of Acosta and allege contributory negligence on the part of plaintiff.

Defendants contend that the evidence is not sufficient to establish negligence on the part of Acosta and that it is sufficient to establish contributory negligence on the part of plaintiff. By its verdict the jury impliedly found against defendants on these contentions. An examination of the record discloses substantial evidence to sustain the jury’s findings, which are therefore binding upon us now.

Defendants contend that the trial court erred in refusing to give certain instructions requested by them on the subject of contributory negligence while at the same time giving certain “anticipatory instructions” on the same subject at the request of plaintiff. No evidence was presented from which the jury could reasonably infer that plaintiff was guilty of any negligence whatever. Consequently defendants, having suffered no prejudice, are not in a position to complain. Moreover, in the so-called “anticipatory instructions” the court sufficiently informed the jury on this subject to enable them to fairly pass upon the issue.