Duncan v. J. H. Corder & Son

WOOD, J. The above-entitled actions were tried together and the jury returned verdicts in favor of the plaintiffs in ■ both actions. Defendants have appealed from the resulting judgments.

[47]Plaintiff Martha M. Duncan was on August 3, 1935, driving a Dodge automobile on the highway known as the Ridge Route. The accident in question occurred about twelve miles north of Castaic at a point where the highway is divided into three lanes, the center lane being set aside for passing only. Defendant Hawkins was driving a truck owned by defendants Corder & Son. The truck overtook the automobile and in passing it some part of the truck came in contact with the automobile with the result that the automobile was forced over the side of the road and down an embankment. Mrs. Duncan received serious injuries and her husband and a passenger riding with them were killed. The actions have been tried twice. At the first trial verdicts were returned in favor of defendants and upon appeal the judgments were reversed on account of errors of the trial court in instructing the jury. A detailed statement of the facts concerning the accident may be found in the opinion on the former trial. (Duncan v. J. H. Corder & Son, 18 Cal. App. (2d) 77 [62 Pac. (2d) 1387].)

Defendant Hawkins admitted that the horn on his truck was out of order. He claims that the horn became useless somewhere on the Castaic grade, and that under the provisions of section 93% of the California Vehicle Act, as then in force, he was justified in proceeding to his home in Tulare without the use of the horn. There is a sharp conflict in the testimony as to the exact location on the highway of the accident. Mrs. Duncan testified that she remained at all times in the right traffic lane but Mr. Hawkins testified that she swerved from the right traffic lane on to the center traffic lane as he was in the act of passing her. Bach party claims that the other was negligent.

Defendants contend that the court erred in refusing to give to the jury their instructions Nos. 9, 27, 31, and 35. These instructions are of similar import and No. 9 may be given as an example: “You are instructed that if the defendant, Mr. Hawkins, was proceeding with ordinary care so far as any proximate cause of the accident was concerned, and if there were no circumstances sufficient to warn a person of ordinary prudence in his position to the contrary, then he was entitled to presume that the automobile driven by the plaintiff, Mrs. Duncan, would not be turned from the right-hand traffic lane into the center traffic lane until the