Opinion
Rehearing Denied Aug. 28, 1929
Hearing Granted by Supreme Court Oct. 7, 1929
Appeal from Superior Court, Orange County; H.G. Ames, Judge.
Action by Verna M. Bowman against the Motor Transit Company. From a judgment for plaintiff, defendant appeals. Reversed.
COUNSEL
Kidd, Schell & Delamer, of Los Angeles, for appellant.
William L. Waters, of Fullerton, and Francis B. Cobb, of Los Angeles, for respondent.
OPINION
CONREY, P.J.
Plaintiff recovered judgment in damages for personal injuries received in an automobile accident alleged to have been caused by negligence of the defendant. Defendant appeals from the judgment.
Of the many assignments of error, we find it is not important to discuss more than one. We shall assume, for the purposes of the decision, that there was sufficient evidence in favor of the plaintiff, so that the jury might have found that according to the "preponderance of the evidence," as that phrase is defined in the law, the issues were established in favor of the plaintiff.
At the time of the accident the plaintiff was riding in an Overland car, which her husband was driving in a southerly direction on Fullerton road in Orange county. At the same time a stagecoach of the defendant was traveling in an easterly direction on Central avenue. A collision between the Overland car and the stage occurred at the intersection of those two streets. It is the contention of appellant, not only that the evidence was insufficient to prove negligence of appellant, but that the evidence conclusively proved that the accident was caused by the negligence of respondent’s husband in driving the car. If his negligence did contribute proximately to his wife’s injuries, such negligence is imputable to the wife, and will constitute a defense just as effectively as if the injury had resulted from her own negligence. Dunbar v. San Francisco, etc., Rys., 54 Cal.App. 15, 201 P. 330.
We have been favored with a careful analysis by counsel on each side, setting forth the testimony of the plaintiff’s witnesses and of the defendant’s witnesses concerning the speed of the respective vehicles, the objects observed, and the manner in which the drivers of these two vehicles conducted themselves, so that the net result of their acts and omissions produced a collision and caused plaintiff’s injuries. We are satisfied that there was evidence sufficient to establish negligence on the part of defendant’s driver, both in crossing the intersection at an excessive rate of speed and in failing to observe the plaintiff’s automobile when it was within plain view. We are also convinced that there was evidence sufficient to justify the court in submitting to the jury the question as to whether respondent’s driver was guilty of negligence contributing proximately to the accident and injury.
The issue concerning alleged contributory negligence of the plaintiff’s husband was supported by some substantial evidence produced by the defendant. It seems to be conceded on both sides that the obstruction to the view across the property lying between the two drivers as they approached the intersection was such that, under the provisions of the statute, the lawful speed was limited to the rate of 15 miles per hour at the intersection. The witness Hyde was a passenger on the stage. He testified that he saw the Bowman car approaching the intersection at a speed of between 35 and 40 miles an hour, and that it did not change its speed until it arrived at a point approximately 50 feet from the intersection, at which time the driver of plaintiff’s car applied his brakes and locked the rear wheels, and caused them to slide the rear wheels on the pavement up to the time of the crash; that he saw where the Bowman car had slid its tires approximately 50 feet, and where the skidding stopped there was an imprint of the car, where it made a swerve in the skidding of the car after it came in contact with the bus. This testimony is positively contradicted by other witnesses. But from the evidence, as a whole, the jury might have found that, according to a preponderance of the evidence, plaintiff’s driver was guilty of contributory negligence proximately causing the accident.
This brings us to the very serious error which, in our opinion, requires a reversal of the judgment. The defendant requested that the court give the following instruction: "In civil cases the affirmative of the issue must be proved, and when the evidence is contradictory the decision must be made according to the preponderance of the evidence. By preponderance of the evidence is meant the weight of the evidence or the preponderance of probability." The court gave this instruction, but added to it the following clause: "Or that evidence which produces conviction in the unprejudiced minds of the jurors." The error assigned relates to this addition. That such an instruction defining the preponderance of evidence is erroneous seems to be beyond doubt. Estate of Ross, 179 Cal. 629, 633, 178 P. 510; Campbell v. Bradbury, 179 Cal. 364, 372, 176 P. 685; People v. Miller, 171 Cal. 649, 154 P. 468. That the affirmative of the issue on the question of contributory negligence was required to be borne by the defendant is, of course, not denied; but the defendant was not under any obligation to establish the fact which would prove contributory negligence by evidence producing "conviction" in the minds of the jurors, or by anything more than a preponderance of the evidence.
As suggested by counsel for appellant, the jury may have been well convinced that both vehicles approached the intersection at an unlawful rate of speed, and also that the defendant’s stage entered the intersection at an unlawful rate of speed. They may not have been convinced, in the strong sense which the word "conviction" implies, that the plaintiff’s automobile also entered the intersection at an unlawful rate of speed, and yet they may have been satisfied that according to the preponderance of the evidence it did enter the intersection at an unlawful rate of speed. Nevertheless, following this instruction, which was to the effect that the evidence of contributory negligence must be such as produces conviction in their minds, they may have been led thereby to find, as they did, that the facts constituting contributory negligence had not been proved. We are forced to the conclusion that the error is prejudicial, and that the judgment based upon a verdict so obtained should be reversed.
The judgment is reversed.
I concur: YORK, J.
HOUSER, J., absent.