Lindstrom v. McReynolds

ADAMS, P. J. Plaintiff Lindstrom brought this action against defendant McBeynolds, alleging that due to negligence on the part of the latter in the operation of an automobile which he was driving, McBeynolds’ car collided with the vehicle driven by plaintiff, with resulting injuries to plaintiff for which he sought damages. McBeynolds, in answer to plaintiff’s complaint, denied negligence on his own part, alleged contributory negligence on plaintiff’s part, and in a cross-complaint sought recovery from plaintiff for damages to defendant’s automobile.

The jury which heard the evidence returned a verdict in favor of defendant on plaintiff’s complaint and in favor of plaintiff on defendant’s cross-complaint and demed recovery to either of the parties. Prom the judgment which followed plaintiff Lindstrom has prosecuted this appeal, the only error relied upon being the giving of an instruction which he claims misled the jury and resulted in a miscarriage of justice.

That instruction is as follows:

“If you find that as the plaintiff traversed the intersection of Sylvan Avenue and Coffee Boad he did not during the last one hundred feet of his approach to such intersection have a clear and unobstructed view of such intersection and of any traffic upon all of the Highways entering such intersection for a distance of one hundred feet along all of such Highways, and if you further find that plaintiff approached and entered said intersection while driving his vehicle at a speed in excess of fifteen miles per hour, then I instruct you that such facts are sufficient to constitute prima facie evidence of negligence.”

It is based upon section 511(a) (4) of the Vehicle Code, which provides that 15 miles per hour is the limit of speed of a motor vehicle “(4) When traversing any intersection of highways if during the last 100 feet of Ms approach to such intersection the driver does not have a clear and unobstructed view of such intersection and of any traffic upon all of the highways entering such intersection for a distance [23]of 100 feet along all such highways, except on a through highway or at a traffic-controlled intersection.”

The evidence pertinent to the issue presented on this appeal, viewed, as it must he, in the light most favorable to the verdict and judgment shows the following facts. Near Modesto Coffee Road running north and south is intersected at right angles by Sylvan Way which runs east and west. There are no stop signs at the intersection. On the day of the collision Lindstrom was driving south on Coffee Road toward the intersection and McReynolds was driving west on Sylvan Way, also toward the intersection. McReynolds testified that when he was about 200 yards east of the intersection and traveling at about 35 miles per hour he saw Lindstrom’s car, which was then about a quarter of a mile north of Sylvan Way; that he saw it again when Lindstrom was about 500 feet away and he (McReynolds) was about 200 feet away and traveling at about 25 miles per hour; and that he saw it the third time when Lindstrom was but 50 feet away from the intersection and was traveling from 60 to 70 miles per hour; that he (McReynolds) had reduced his speed to about 15 miles per hour and on seeing Lindstrom’s near approach put on his brakes, but that the ears collided; and that he was then traveling no more than 1 or 2 miles per hour and Lindstrom’s speed was still 60 to 70 miles an hour. The Lindstrom car turned over several times and came to rest 155 feet from the point of impact. McReynolds also testified that while there were trees growing on the northeast corner of the intersection one traveling south on Coffee Road northward of Sylvan Way could see traffic on Sylvan Way through the trees.