Schmidt v. Sears

ADAMS, P. J. This action was brought by John Richard Schmidt, a minor about 11 years old, by his father as guardian ad litem, to recovér damages for injuries sustained by said minor, when, as he alleges, he was struck, hit and run over by a semitractor truck owned by defendants Ben and John F. Vogel, and driven by defendant John B. Sears, their employee. The accident occurred about 7:45 p. m., October 24, 1944, when the semitractor was making a right turn from East Lindsay Street onto Eugenia Street in Stockton. Plaintiff alleged and contended at the trial that he was walking in the space provided for pedestrians at the southwest corner of the intersection, and that in making the turn the driver of [206]the truck negligently operated his vehicle and caused it to run over his left foot and leg, crushing the foot and also injuring his right leg and hip.

Defendants denied negligence on their part, and alleged contributory negligence on the part of plaintiff. Trial of the issues before a jury resulted in a verdict for defendants, a new trial was denied, and plaintiff has appealed from the judgment which followed.

Appellant’s first assignment of error is that the trial court erred in giving the following instruction:

“In this case the answer of the defendants denies negligence and sets up the defense of contributory negligence. Contributory negligence presupposes that the plaintiff did not exercise due care for his own safety and that his failure so to do proximately contributed to his own injuries. It is an affirmative defense and must be proved by a preponderance of the evidence, unless it can be shown or inferred from the evidence given in support of plaintiff’s ease. But when it has been established it is a complete defense to the action. If you find, therefore, that the plaintiff in this case was negligent and that his negligence proximately contributed in any degree to the accident, then and in that event, you must find against the plaintiff. And this is true even though you should find that the defendant was also negligent, or that he was more negligent than the plaintiff. ’ ’

Appellant argues that the word “presupposes” in such instruction carried the implication that plaintiff was negligent, and that the jury were in effect told by the court that he was negligent, that it placed the burden of establishing lack of contributory negligence upon plaintiff and did not state that such an affirmative defense must be proven by defendants.