Candelaria v. Schwartz

WOOD (Parker), J. Plaintiff, who obtained a judgment for damages for personal injuries, appeals from an order granting defendant’s motion for a new trial. The motion was granted upon the ground that an erroneous instruction was given.

On March 31, 1951, between 6:30 p. m. and 7 p. m., plaintiff was operating a motorcycle in an easterly direction on First Street in Los Angeles. Defendant, who had been driving an automobile in a westerly direction on that street, was making a left turn at the intersection of that street and Chicago Street. The vehicles collided within that intersection. There was no headlight or headlighting device on the motorcycle. Defendant did not see plaintiff before the collision occurred. On said day the sun set at 6:13 p. m.

At the request of plaintiff, the court gave the following instruction: “The law does not require that the motorcycle which the plaintiff was riding should be equipped with lighting devices prior to one-half hour after sunset. On March 31st, 1951, sunset occurred at 6 :13 P.M. and so consequently, if you find that the- accident occurred prior to 6 :43 P.M. on that day you must likewise find that the mere fact that the plaintiff’s motorcycle was not equipped with lights does not constitute negligence.” (That instruction is referred to as plaintiff’s instruction No. 1.)

At the request of defendant, the court read section 618 of the Vehicle Code as one of its instructions. A part of that section is as follows: “ (a) Every vehicle upon a highway at any time from a half hour after sunset to a half hour before sunrise and at any other time when there is not sufficient light to render clearly discernible any person or vehicle on the highway at a distance of two hundred feet shall be equipped with lighted lamps and lighting devices. ...” (This instruction is referred to as defendant’s instruction No. 1.)

In granting the motion for a new trial, the judge stated in substance that it was prejudicial error to give plaintiff’s instruction No. 1 because it “overlooks all reference to that portion of Section 18 [618] of the Vehicle Code which relates to equipment of lighted lamps on motorcycles ‘at any other time when there is not sufficient light to render clearly discernible any person or vehicle on the highway at a distance of 200 feet.’ ”

Appellant argues that his instruction No. 1 was correct; that all the testimony of all witnesses was to the effect that visibility was good, and consequently it would have been [311]