Opinion
Rehearing Denied Aug. 30, 1929
Hearing Granted by Supreme Court Sept. 30, 1929
Appeal from Superior Court, Alameda County; E.C. Robinson, Judge.
Action by Stuart James against Leonard D. Frazee and others. Judgment for plaintiff, and named defendant appeals. Affirmed.
COUNSEL
Barry J. Colding and Theodore Hale, both of San Francisco, for appellant.
Ford, Johnson & Bourquin, of San Francisco, for respondent.
OPINION
NOURSE, J.
Plaintiff sued for damages resulting from an automobile collision. The cause was tried before a jury, which returned a verdict for plaintiff in the sum of $35,000. This verdict was reduced on order of the trial court to $17,500, and the defendant has appealed from the judgment upon typewritten transcripts.
The collision occurred at the intersection of two streets in the city of Oakland while defendant was endeavoring to make a left-hand turn through the intersection. Each party charged the other with negligence in the operation of his vehicle; the principal act of negligence charged to the defendant being his alleged failure to give a proper signal before attempting to make the turn. The plaintiff suffered a fractured leg and other minor injuries, and on this appeal the suggestion is made that the verdict is highly excessive, but the point is not urged for a reversal of the judgment. On the merits of the case appellant concedes that the evidence is conflicting and that there is some evidence to support the verdict. For this reason no attack is made upon the judgment on that ground.
The only point urged on the appeal is that the trial judge erred in giving certain listed instructions to the jury. These instructions relate generally to the definitions of negligence and contributory negligence and to the duty of the defendant in the operation of his vehicle on the public highway as such duty is laid down by certain sections of the Motor Vehicle Act (St.1923, p. 517, as amended). The appellant argues that these instructions cast too heavy a burden upon him and that the jury should likewise have been instructed that these provisions of the Motor Vehicle Act applied to the respondent as well.
There is considerable merit in appellant’s criticism of some of the instructions listed, but we will not discuss them because the record is not in condition to enable us to give appellant any relief. The record presented by the appellant shows 63 instructions given by the trial judge and 10 instructions requested by the appellant and either given as modified or refused. The record does not disclose which party requested any of the instructions which the appellant now attacks, but it does appear that none of the instructions requested by the defendant and refused touch upon the subject-matter covered by the instructions now complained of.
The rule of the decisions is that when the record does not show at whose request certain instructions were given the appellate court must presume that any instruction complained of was given at the request of the appellant and the judgment cannot be reversed on the ground of asserted error in such instruction. Sutter Butte C. Co. v. American R. & A. Co., 182 Cal. 549, 554, 189 P. 277; Gray v. Eschen, 125 Cal. 1, 5, 57 P. 664; Finkelstein v. Cosgrove, 83 Cal.App. 201, 202, 256 P. 608; Walters v. Evick (Cal.App.) 268 P. 1061.
For this reason the judgment is affirmed.
We concur: KOFORD, P.J.; STURTEVANT, J.