Opinion
Rehearing Denied Jan. 11, 1934.
Hearing Granted by Supreme Court Feb. 9, 1934.
Appeal from Superior Court, Los Angeles County; Percy Hight, Judge.
Action by Charles W. Morris against the Pacific Electric Railway Company and another. From the judgment for plaintiff, defendants appeal.
Reversed.
COUNSEL
Frank Carr, of Oakland, and E. E. Morris and C. W. Cornell, both of Los Angeles, for appellants.
Swaffield & Swaffield, Kenneth Sperry, and Joseph E. Madden, all of Long Beach, for respondent.
OPINION
CRAIG, Justice.
In an action for damages alleged to have been sustained as a result of a collision between an electric engine and an automobile, a verdict and judgment were entered in favor of the plaintiff. The defendants appealed.
Evidence offered by the respective parties tended to show that the plaintiff was driving at a rate of 45 to 50 miles per hour when about 75 feet from the intersection, whereas he swore that he was driving not more than 25 or 30 miles per hour at or about the time of the accident. The defendants requested that the jury be instructed to the effect that it would be unlawful to drive faster than 40 miles per hour, and that, if they should believe that he had been driving at and just prior to the accident at a greater rate than 40 miles per hour, he would be guilty of negligence as a matter of law and could not recover. The refusal to give this instruction is the principal ground assigned for a reversal of the judgment. Much space in the respondent’s briefs is devoted to contending that there is an entire lack of evidence to show that the plaintiff’s car was traveling as fast as 40 miles per hour at the time of the collision. We think that, from the testimony of the numerous witnesses, there is ample evidence, if construed most favorably to respondent, as it must be in considering the propriety of the instruction offered, to have justified it.
Such evidence, if believed by the jury, would entitle them to conclude under proper instructions, and the defendants were justified in asking that they determine, whether or not the plaintiff was acting within the law or was exceeding the statutory limit of speed at the time of the impact. We need but quote from one of numerous decisions upon the point. "As said in Scragg v. Sallee, 24 Cal.App. 133, 144, 140 P. 706, 710: ‘While it is undoubtedly correct to say that the act of driving a vehicle over a street or public highway beyond the speed limit established by a municipal ordinance or a statute merely constitutes evidence of negligence in cases where damage has followed the infraction of such an ordinance or law, the rule in this state is, however, that it is conclusive evidence of negligence (citing cases). Therefore, the statement that such an act is "of itself negligence" or "negligence as a matter of law" or "negligence per se" (equivalent expressions) is, in this state, strictly correct.’ See, also, Baillargeon v. Myers, 180 Cal. 507, 508, 182 P. 37; Flynn v. Bledsoe Co., 92 Cal.App. 145, 267 P. 887; Towne v. Godeau, 70 Cal.App. 148, 232 P. 1010." Benjamin v. Noonan, 207 Cal. 279, 277 P. 1045, 1046. To the same effect are Taylor v. Cockrell, 116 Cal.App. 596, 3 P.2d 16; Fitzpatrick v. Haskell, 117 Cal.App. 684, 4 P.2d 580; Thompson v. Dentman (Cal.App.) 21 P.2d 1009. As in the case of Taylor v. Cockrell, supra, both the facts in suit and the trial took place before the amendment of section 113 of the California Vehicle Act in 1931 (see St. 1927, p. 1436, § 30; St. 1931, p. 2120, § 34). We think the refusal on the part of the trial court to give this instruction was prejudicially erroneous.
The judgment is reversed.
We concur: STEPHENS, P. J.; ARCHBALD, Justice pro tem.