Bivens v. Haber

McCOMB, J. From a judgment in favor of defendants after trial before a jury in an action to recover damages for injuries resulting to plaintiff who was struck by an automobile [629]driven by one of the defendants and owned by the other, plaintiff appeals. There is also a purported appeal from the order denying a new trial.

Facts: About 7:30 p. m. on August 7, 1949, plaintiff was crossing the street within a marked crosswalk at the intersection of Sunset Boulevard and Hartford Way in Beverly Hills, California, when she was struck by defendants’ automobile.

Immediately prior to the accident plaintiff had alighted from a bus on the south side of Sunset Boulevard and had entered the crosswalk, walking in a northerly direction across the boulevard. At the time she entered the crosswalk the green light was in her favor. Before she had completed the crossing, however, the signal changed.

Defendants’ car, traveling in a westerly direction on the north roadway of Sunset Boulevard and following another car, which had been stopped awaiting the green signal, proceeded into the crosswalk when the signal light changed permitting traffic to travel in a westerly and easterly direction. The automobile in front of defendants’ barely missed hitting plaintiff and the driver thereof shouted a warning to her. Thereafter defendants’ car struck plaintiff.

Questions: First: Did the trial court commit prejudicial error in instructing the jury as follows?

“At an intersection where traffic is controlled by an automatic signaling device, if a pedestrian starts to cross the street when the signal says ‘Go’ for his direction of travel, and if- before he completes the crossing that signal changes to ‘Stop,’ the law does not necessarily require that he retrace his steps or that he stand still until the signals change again, but only that he exercise ordinary care in meeting the situation at hand.”

No. A party may not complain of error in an instruction given at his own request. (Yolo Water & Power Co. v. Hudson, 182 Cal. 48, 51 [186 P. 772].) In the instant case the record discloses that both plaintiff and defendant requested the foregoing instruction. Therefore this rule is applicable and plaintiff may not allege error in the giving thereof.

Second: Did the trial court err in refusing plaintiff’s request to give the following instruction?