Zeidman v. Anticouni

DORAN, J. This is an appeal from the judgment.

The action is for damages resulting from an automobile collision. The jury returned a verdict for defendant.

As recited in appellant’s brief, “The auto collision in question occurred on -February 20, 1952, at approximately 2:20 A. M., at the intersection of Washington Boulevard and Western Avenue, in the City of Los Angeles. Decedent Benjamin Zeidman, operating a Plymouth automobile, was proceeding in a general westerly direction along and upon Washington Boulevard, and the defendant, Margaret Hulsey Anticouni, operating a Ford station wagon, was proceeding in a southerly direction along and upon Western Avenue.

[556]That death of Benjamin Zeidman resulted from this collision, is admitted. The issues, in general, concern themselves with the negligence of the defendant, and the contributory negligence of the decedent, which issues, when refined, amounted to whether the defendant, and/or the decedent, entered the aforementioned intersection with the right of way; whether the defendant and/or decedent were proceeding at a lawful rate of speed at the time immediately prior to the collision. ...”

“Plaintiff requested, among other instructions, the following, to wit:

“ ‘The presumption is that every man obeys the laws, and the presumption in this case is that plaintiff’s husband, Benjamin Zeidman, was travelling at a lawful rate of speed, and entered the intersection while the signals controlling westbound traffic on Washington Boulevard were “green” or “go”. This presumption is in itself a species of evidence, and it shall prevail and control your deliberations until, and unless it is overcome by satisfactory evidence. ’

“The Court amended said requested instruction to read:

“ ‘The presumption is that every person obeys the law with respect to the traffic signals. This presumption is in itself a species of evidence, and it shall prevail and control your deliberations until, and unless it is overcome by satisfactory evidence. ’

“There was no other instruction, covering the point as to the presumption of due care by the decedent, given by the Court.”

Appellant argues, “This instruction was not given. Had it been given, it would have, by its very terms, become a species of evidence, that decedent had traveled at a lawful rate of speed and that he did enter the intersection while the signal guiding his travel was ‘green’ or ‘go.’