Irwin v. Golden State Auto Tour Corp.

T his is an appeal from a judgment and order denying a motion for a new trial in an action for damages for personal injuries. Concerning the facts of the case there is, with one exception, no material dispute. The accident in which the plaintiff suffered his injuries occurred on the evening of February 18, 1914, on North Broadway Street near Pritchard Street, in the city of Los Angeles. Plaintiff’s version of it is substantially adopted for the purpose of this appeal: He testified that about 5 o’clock on the evening of the above date he had taken a car on North Broadway and Eighteenth Avenue, and ridden out North Broadway to Pritchard Street, where he got off the car and went across the street to a butcher-shop to get some meat. As he went into the butcher-shop he met Mr. Kelley, whose truck was standing in front of the shop, and who asked him if he wanted a ride home. (Mr. Kelley lived in his neighborhood.)

The first contention urged by the appellant is that the court erred in giving the following instruction: “You are instructed that, if you find from the evidence that plaintiff was about to board the automobile truck as the guest of its driver, neither exercising nor assuming any control over it, then, even though you may also find that the auto truck was not properly equipped or lighted, or that its driver was negligent in any other respect, such negligence must not be imputed to plaintiff. The plaintiff is responsible only for the exercise of ordinary care on his own part.” In this connection the appellant also alleges that the court erred in refusing to give in lieu of the foregoing instruction the following instruction requested by the defendant: “You are hereby further instructed that the plaintiff when he was in the act of getting on to the auto truck which was standing in the street accepted the conditions there existing, including the position in which said auto truck was standing.” The rule which the appellant seeks to invoke in support of its contention that the trial court was in error in giving and refusing respectively the foregoing instructions, is that the negligence of the driver of a vehicle is to be imputed to the passenger; or, as in the case at bar, to one about to become such passenger, the appellant claiming that there was sufficient evidence that Kelley was negligent, with respect to the position in which his truck was standing at the time of his invitation to the plaintiff to ride with him, and in the position in which it still stood at the time when the plaintiff was attempting to board it, to permit the application of the above rule, and hence that the appellant was entitled to an instruction to the jury to that effect. We are of the opinion that the rule for which the appellant contends, however correct in a proper case, cannot be given application to the facts of the ease at bar. It is true that the plaintiff had been invited by Kelley to ride home with him in his truck, but the plaintiff had in no way participated in any act of negligence which Kelley may theretofore have committed in the placing of his truck; nor had the plaintiff any control over the conduct of Kelley in regard thereto, or in his management of his vehicle. The plaintiff had not yet become, in point of fact, a passenger upon Kelley’s truck. The

It follows that the court did not err in refusing to give the defendant’s suggested instruction, nor in its refusal to give any other of the defendant’s offered instructions in which the doctrine of imputed negligence was sought to be invoked, nor was the court in error in giving the foregoing instruction at the plaintiff’s request, since, aside from its correct statement as to the rule of imputed negligence, it also embodied in its concluding sentence the proper rule governing the plaintiff’s situation in the instant case: “The plaintiff is responsible only for the exercise of ordinary care on his own part.” Whether or not he exercised such care under the circumstances of the instant case was a question of fact for the jury.

The appellant’s next contention is that the court erred in the exclusion of the ordinance of the city of Los Angeles in effect at the time of the accident, making it unlawful to stop any vehicle on any street unless the side next the curb is not more than two feet from the curb. The only bearing which this ordinance could have upon this case would be upon the question of the imputed negligence of Kelley in allowing his vehicle to remain standing in a position violative of the requirements of the ordinance. But when the doctrine of imputed negligence is eliminated from the ease, the terms of this ordinance become entirely immaterial to it, and hence it was properly excluded by the trial court. This reasoning and conclusion also applies to another ordinance to practically the same effect, which the defendant omitted to introduce upon the main trial, but which it sought to have presented as newly discovered evidence upon its motion for a new trial. It was neither newly discovered evidence nor was it material

Judgment and order affirmed.

Sloss, J., and Shaw, J., concurred.