Opinion
Hearing Granted May 3, 1961.
Opinion vacated 16 Cal.Rptr. 351.
Whitney & Hanson, Stanley D. Whitney, Alameda, for appellants.
Woodrow W. Kitchel, Oakland, D. W. Brobst, Oakland, of counsel, for respondents.
STONE, Justice pro tem.
This is an appeal by the plaintiffs from a judgment for the defendants entered pursuant to a verdict in a personal injury action brought to recover damages sustained by the minor plaintiff, a 5-year-old child, and for expenses advanced by her father.
Defendant Truax was driving a station wagon easterly on San Antonio Avenue approaching Sherman Street in Alameda. The 5-year-old plaintiff was standing on the northeast corner of Sherman and San Antonio. A witness testified that as the young-ster started to cross San Antonio, a car was about to enter the intersection from the east while the defendant was approaching the intersection from the west. The car coming from the east was so near the child that the witness expected an accident and ducked her head. When she looked up, the car from the east which she had feared would strike the child, was continuing west on San Antonio beyond the intersection, but beneath defendant's east-bound car, which had stopped, she saw the plaintiff. Defendant Truax testified that he was traveling between 20 and 25 miles per hour as he approached the intersection, that although he never saw the plaintiff, he was momentarily conscious of an object coming rapidly toward his car from the left. The jury found for the defendants and judgment was entered accordingly.
Appellants' principal ground of appeal is that the trial court gave conflicting instructions which misled the jury. The court gave the standard instructions on negligence and proximate cause. Also given were the three following instructions, to which appellants take exception:
Defendants' Instruction No. 17: (former Veh.Code, § 562. )
'Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway.
'The provisions of this section shall not relieve the driver of a vehicle from the duty to exercise due care for the safety of any pedestrian upon the roadway.'
Defendants' Instruction No. 21: (BAJI 201-C.)
'Before attempting to cross a street that is being used for the traffic of motor vehicles, it is a pedestrian's duty to make reasonable observations to learn the traffic conditions confronting him, to look to that vicinity from which, if a vehicle were approaching, it would immediately endanger his passage, and to try to make a sensible decision whether it is reasonably safe to attempt a crossing. What observations he should make and what he or she should do for his or her own safety while crossing the street are matters which Defendants' Instruction No. 10: (BAJI 103.1.)
'Contributory negligence is negligence on the part of a plaintiff, which negligence, concurring with the negligence of another person, contributes in some degree in proximately causing the damage of which the plaintiffs thereafter complain. One who is guilty of contributory negligence may not recover from another person for the injury suffered.'
It is appellants' contention that these instructions advised the jury that a little girl, 5 years of age, was required to exercise the same amount of care as an adult and that her conduct was to be judged by the same standard of care as that of an adult. However, the last instruction given in the series on negligence and statutory duty of care reads as follows:
Plaintiffs' Instruction No. 5(a): (BAJI 147.)
'A child is not held to the same standard of conduct as an adult, and is only required to exercise that degree of care which ordinarily is exercised by children of like age, mental capacity and experience. There is no precise age at which, as a matter of law, a child comes to be held accountable for her actions by the same standard as applies to an adult. It is for you to determine the mental capacity and experience of Jane Daun and whether her conduct was such as might reasonably have been expected from a child of like age, capacity and experience, under the same or similar circumstances.
'The rule just stated applies even when a child is charged or alleged to have violated a statute or the evidence shows such a violation. The question whether the child was negligent still must be answered by the standard applicable to children, as I have stated it to you.'
Appellants' counsel concedes that this instruction tendered by him correctly states the standard of care which applies to a child. It is his contention that it is contradicted by the quoted instructions which preceded it. He asserts that the instructions relating to pedestrians and to contributory negligence should have been modified to conform to the latter instruction concerning the standard of care of a child. Respondents, on the other hand, contend there was no error since the court instructed the jury, 'You are to consider all of these instructions as a whole and regard each in the light of all the others.' They argue that the jurors were clearly instructed that when considering the three instructions to which appellants take exception, they were to apply the standard of care applicable to a child. Respondents' position is sustained by Hartshorne v. Avery, 130 Cal.App.2d 517, 279 P.2d 123, which presented the same question. The court said 130 Cal.App.2d at pages 520, 521, 279 P.2d at page 126:
'The jury in the instant case were instructed on both issues, i. e., negligence per se and minority, and it must be assumed that they gave due consideration to both in bringing in their verdict.
'As stated by this court in Horrell v. Santa Fe Tank & Tower Co., 117 Cal.App.2d 114, 120, 254 P.2d 893, 896:
"It is not error for a court to refuse to give a requested instruction if the full charge correctly states the substance of the law applicable to the facts involved in the case (24 Cal.Jur. 806-810); and a reversal is not warranted unless it appears probable that a different result would have obtained had the refused instruction been given. 24 Cal.Jur. 861-865."
Another pedestrian crossing case involving a minor which presents a similar fact situation and a similar question of law concerning Stroud v. Hansen,
'The standard of care required of a child having been explained to the jury in Baji 103, it is presumed that they possess common intelligence and that they considered the instructions as a whole. Douglas v. Southern Pac. Co., 203 Cal. 390, 396, 264 P. 237. A trial court is not required to state in one instruction all of the law with reference to the issues involved. All instructions must be read together and each must be considered in connection with all. If they harmonize and fairly state the law the verdict will not be disturbed. Callet v. Alioto, 210 Cal. 65, 70, 290 P. 438; Barlow v. Crome, 44 Cal.App.2d 356, 112 P.2d 303.'
Another approach to the question with the same result was expressed by the court in Dennis v. Gonzales, 91 Cal.App.2d 203, at page 210, 205 P.2d 55, at page 59, wherein the court said:
'* * * One may not extract from the entire charge a single instruction and successfully contend that it must contain all the elements necessary to substantiate a verdict. Stroud v. Hansen, 48 Cal.App.2d 556, 562, 120 P.2d 102; Callet v. Alioto, 210 Cal. 65, 70, 290 P. 438; Barlow v. Crome, 44 Cal.App.2d 356, 361, 112 P.2d 303. If each instruction had to be all-encompassing the court would be limited to but one instruction. * * *'
Appellants have called our attention to still another pedestrian crossing case involving a minor (Jones v. Wray, 169 Cal.App.2d 372, 337 P.2d 226), in which instructions similar to those before us were given. The court in Jones arrived at a conclusion contrary to Hartshorne v. Avery, supra, and Stroud v. Hansen, supra. The Jones decision rests upon Cole v. Ridings, 95 Cal.App.2d 136, 212 P.2d 597, and incorporates nearly all of the Cole opinion by direct quotation. An analysis of Cole discloses that although the court gave the general instruction on the standard of conduct applicable to a child, it neglected to instruct the jury, as the court did in the instant case, that '[t]he rule just stated applies even when a child is charged or alleged to have violated a statute or the evidence shows such a violation. The question whether the child was negligent still must be answered by the standard applicable to children, as I have stated it to you.' [169 Cal.App.2d 372, 337 P.2d 228] Clearly, Cole is correct in holding it reversible error to fail to instruct that the standard of care which a child must exercise applies to a violation of a statutory duty. But the Cole case is not authority for the proposition that reversible error is committed when proper and complete instructions on the duty of care of a child are given, simply because they are given separate from or subsequent to the instructions defining a statutory duty of care. Since the Wray case was predicated upon Cole v. Ridings, it is distinguishable from the Hartshorne and Stroud cases as well as this case.
Appellants that since this case was close on the facts, it is reasonable to assume that the jurors were misled by the instructions and that they did not construe each instruction in the light of all the others. It is difficult for us to say how close the case was by a reading of the record. Certainly the trial judge who observed the witnesses and heard and observed the evidence was aware of this aspect of the case at the time appellants moved for a new trial. The record reflects that when the motion was heard, court and counsel engaged in a full discussion of the instructions and the facts of the case. After due consideration of the same questions which are now before us on this appeal, the trial court denied the motion for a new trial. The denial of the motion for new trial by the court and the unanimous defense verdict of the jury would seem to indicate that the facts were not as close as counsel argues. Granting that there was a serious conflict in the evidence, we cannot say that a different result would have obtained had Appellants also cite as error the refusal of the trial court to give certain proffered instructions. A review of those instructions discloses that they were all covered in substance by proper instructions which were given.
The judgment is affirmed.
DRAPER, Acting P.J., and SHOEMAKER, J., concur.