Labarthe v. McRae

NOURSE, P. J. In a suit for personal injuries arising from a collision of automobiles in a street intersection the plaintiff had a verdict and judgment. The defendants’ appeal is limited to an attack upon three instructions.

There is no substantial conflict in the evidence which the appellants concede is sufficient to support the judgment. The defendant McRae, driving a car in the business of his em[567]ployer and codefendant, approached the intersection from the north. The plaintiff approached from the west, and to McRae’s right. The two streets intersected at right angles and the intersection was clear and unobstructed. As McRae approached the intersecting line, he slowed down to a speed of about twelve miles an hour. The plaintiff was traveling a little faster—approximately at fifteen miles an hour. Though the view was clear and unobstructed, McRae testified that he did not see plaintiff’s car approaching the intersection. Witnesses testified that he had his head turned to the left and was looking east, that he slowed down at the intersection, continued to look to the east, and gave the impression that he was stopping at the line. Because of this conduct the plaintiff testified that she assumed that McRae was yielding the right of way to her, and she accordingly drove forward, striking defendant’s car about the middle of the right hand door. The blow was with such force that the entire front of plaintiff’s car was badly injured.

The first criticized instruction contained the expression “if two vehicles approach an intersection of public highways, at approximately the same time, or at the same time, the vehicle approaching from the right shall have the right of way, provided such vehicle is traveling at a lawful rate of speed”. Respondent concedes the error of the instruction in view of the provision of section 550 (b) of the Vehicle Code, as it read at the time of the collision. It is there declared that the driver on the right shall have the right of way only when the two vehicles “enter” the intersection “at the same time”. This section of the Vehicle Code, and the statutes preceding it, went through many legislative changes from 1923 to 1935 in a determined effort of the legislature to impress upon the courts that judicial interpretation of the legislation was not in accord with the legislative intent.

The admitted error in the instruction would become a material and important factor in the ordinary case of collisions at street intersections where one party, relying upon the old statute of 1923, arbitrarily insists that he is entitled to the right of way because he has approached the intersection first, thus disregarding the equally important element of the relative rate of speed of the two vehicles. If the criticized instruction were given in relation to evidence which showed