I concur in the judgment. But I do not agree to an unrestricted approval of the instructions given to the jury. [2] Instruction No. 15 reads thus: "You are instructed that the driver of a motor vehicle is in charge and control of a dangerous instrumentality, capable of inflicting serious and often fatal injuries, and for that reason he is charged by the law with a higher degree or greater amount of care than the pedestrian." It is not a correct expression of the rule to say that the driver of a motor vehicle is charged by law with a higher degree of care than is the pedestrian. Counsel is in error when he says that the instruction given is the same instruction which was approved in Vedder v.Bireley, 92 Cal.App. 52 [267 P. 724]. The instruction there under consideration is quoted at the bottom of page 58 (92 Cal. App.) of the opinion. It specifically stated that the defendant and the plaintiff were both chargeable with only the exercise of reasonable care, but that "a greater amount of such care was required of the defendant". But while I think that the use of the words "a higher degree" in said instruction No. 15 was incorrect, I also am of the opinion that the entire clause in which it occurs, when taken together with the other instructions given (and the fact that it is not claimed as a ground of reversal, that the defendant was not in fact guilty of negligence), makes of the error a thing of negligible importance. It is not likely that the *Page 473 jury made any fine distinction between "degree" and "amount". Moreover, the jury was instructed (inst. No. 20) concerning the equal and common right of pedestrians and automobile drivers in the use of public highways and that "all persons using the same must exert constant care and caution for the conservation of their correlative rights commensurate with the special hazard which is peculiar to and nowadays ever present in the use of public highways". A reading of the other instructions shows that the court nowhere undertook to discuss the differences between ordinary care, slight care and extraordinary care, but was seeking to instruct the jury concerning the rules applicable to different persons alike bound to the use of ordinary care.
[3] Instruction No. 22 deals with the liability of an owner whose car is being driven by another person. Objection is made to the clause thereof which says: "that in all cases where the owner is present he will be responsible for injuries sustained by third persons unless", etc. Unfortunately the element of negligence of the driver was omitted from the statement; with the consequence that appellant now claims that the instruction was an unqualified instruction for a verdict in favor of the plaintiff. Again we must have recourse, as we reasonably may do, to the other instructions, which clearly declare that the plaintiff cannot recover without establishing negligence as a proximate cause of the injury. Not only so, but the court even went so far as to tell the jury (inst. No. 6) that "the affirmative is upon the plaintiff in this case", without making the appropriate exception which should have been made in relation to the issue of contributory negligence.
Concerning the other instruction given of which appellant complains (inst. No. 35) it is not criticised as an erroneous statement of the law, but only as not justified by the evidence. I am inclined to think that the instruction was appropriately given.
[4] Appellant complains that the court refused certain instructions requested by him. They are found on pages 206, 207 and 208 of the transcript. If the court had not given other instructions in effect covering the same ground, I think it would have been seriously an error to have refused some of them; and particularly those relating to *Page 474 the equal duty of both parties to exercise ordinary care under the circumstances existing at the time when the accident occurred, and the duty of the plaintiff to use ordinary care and to reasonably exercise for her personal safety her powers of sight and hearing. But the court did give instructions which in substance declared the equal and correlative rights and duties of the parties, and also declared (inst. No. 24) that the law requires of the pedestrian that "he must look at least in those directions from which danger may be easily apprehended as often and as carefully as would a person of ordinary prudence under like circumstances". I conclude that the judgment should be affirmed.
Houser, J., concurred.
A petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on February 29, 1932.