Krupp v. Los Angeles Railway Corp.

WOOD (W. J.), J. An action was commenced by Ruth Coriene and her husband to recover damages for injuries suffered, by Mrs. Coriene when an automobile in which she was riding as a guest passenger was struck by a streetcar operated by defendant Crow and owned by defendant Los Angeles Railway Corporation. A separate action was commenced by Esther F. Krupp to recover for injuries suffered in the same accident, she also having been a guest passenger in the same automobile. The actions were consolidated for trial, resulting in a verdict for defendants. Plaintiffs have appealed from the ensuing judgments.

The accident occurred about noon on August 9,' 1941, on Western Avenue near the intersection of Melrose Avenue in the city of Los Angeles. At that time plaintiffs were riding as guests of Mrs. Tillie Nahan in an automobile which was being driven by Mrs. Nahan in a southerly direction. In addition to the plaintiffs and the driver, Mrs. Barbara Davis, her minor daughter, and the minor daughter of Mrs. Nahan were riding in the car. They were on their way to have luncheon at the Farmer’s Market.

Defendant railway corporation operates a streetcar line on Western Avenue. As Mrs. Nahan was driving her car along Western Avenue between a line of automobiles parked at the curb and the streetcar tracks, an automobile stopped directly in front of her ear and blocked passage in the lane in [697]which she was driving. Mrs. Nahan started to turn to the left to pass around this automobile but the motorman of defendants’ streetcar, which was coming from her rear, rang the bell and Mrs. Nahan pulled back to the right to a point within a foot of the automobile which had stopped and she in turn stopped her car. Within two or three seconds thereafter defendants’ streetcar struck the Nahan automobile and shoved it into the automobile which had stopped ahead of it, causing the injuries for which plaintiffs are seeking damages.

The trial court erred to the prejudice of plaintiffs when it refused to give to the jury a requested instruction that the negligence of the driver of the ear in which plaintiffs were guests was not imputable to plaintiffs. (Renowden v. Pacific Elec. Ry. Co., 73 Cal.App. 383 [238 P. 785].) The prejudice suffered by plaintiffs by the failure to give such an instruction was emphasized when the court in another instruction told the jury that plaintiffs could not recover if their injuries were a “result of the mutual fault and negligence of the defendant and of the plaintiffs.” The fact that this instruction was given in a paragraph dealing with the measure of damages does not destroy its effect, for the jury is presumed to have heard and heeded all of the instructions given by the court. In their answer defendants pleaded contributory negligence but no evidence was presented at the trial which gave the slightest support to these allegations. The instruction concerning the “mutual fault” of the defendants and of the plaintiffs should not have been given. (Chapman v. Pacific Elec. Ry. Co., 85 Cal.App. 69, 74 [258 P. 1006].)