Schramko v. Montgomery Ward & Co.

DEVINE, J. Appellant is plaintiff in an automobile accident case. His vehicle was struck by a huge truck which was making a left turn into the street on which appellant’s car was, appellant’s vehicle being faced in the opposite direction to that of respondents’ rig after the latter completed the turn. Specifically, appellant’s car faced north, the truck turned from east at the intersection to south.

It is undisputed that the collision occurred on the left, or wrong, side of the street, from the truck’s standpoint; this was the street being entered by the truck. The truck was about 3 feet over the center line at the point of impact. The driver had pleaded guilty to a charge of making an improper left turn, and this plea was brought out as an admission at the accident trial. Although respondents do not concede negligence, it seems that the main issue was that of contributory negligence.

Facts and Decision on Instruction Bearing on Negligence

' There is, however, one aspect of the ease relating tc negligence of the truck driver which must be considered, namely, whether it was error for the court to instruct on the provisions of Vehicle Code section 21650, subdivision (b). The instruction as given is: “Upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway, except as follows: (b) When placing a vehicle in a lawful position for, and when the vehicle is lawfully making, a left turn.”1 Appellant contends that this instruction was inappropriate and misleading because it might have caused the jury to believe that it is lawful, in making a left turn, to drive into the left half of the roadway that is being entered. The subdivision of the code section, says appellant, is intended only to state that it is not unlawful for the driver making a left turn to do what he obviously must do, that is, turn into and across the left lane of the roadway which he is leaving.

It may be that the giving of the instruction was unnecessary, but it was not prejudicially erroneous. The court also [774]instructed on the requirement in Vehicle Code section 22100 that a “left turn shall be made so as to leave the intersection in a lane lawfully available to traffic moving in such direction upon the roadway being entered.” As will appear in the discussion of contributory negligence, the main point of controversy, and perhaps the only one, on the subject of liability was whether appellant’s vehicle had remained in a position behind the crosswalk and was struck by respondents’ rig while this was leaving the intersection, as contended by appellant; or had moved forward, as contended by respondents. If when the truck struck appellant’s car, the latter was where appellant contends it was, the truck driver obviously would have been violating section 22100.