This is an appeal by the defendant from a judgment in favor of the plaintiffs, the widow and minor *Page 514 children of one David Noce, in an action for damages arising from the latter's death, alleged to have been caused by the negligence of defendant.
The case was tried by a jury which rendered a verdict in the plaintiff's favor for fifty thousand dollars, but upon motion for a new trial the court made an order granting the motion unless the plaintiffs would consent to a reduction of the verdict and judgment to twenty-five thousand dollars. The plaintiffs consented, and the judgment now appealed from is for the sum of twenty-five thousand dollars.
On the twenty-second day of July, 1919, a south-bound electric car of the defendant left Daly City on schedule time at 1:50 P. M. and had proceeded but a short distance when it collided with a motor-truck belonging to one A. G. Witt. This truck was on the right-hand car track and running at the rate of about twenty miles an hour. The car at the time of said collision was running down grade at the rate of about forty miles an hour. According to the evidence of a number of witnesses called by the plaintiffs the motorman gave no warning of his approach, and his car crashed into the rear of the motor-truck, hurling it into an adjoining field, the vestibule of the car being smashed and the motorman thrown to the floor unconscious; the air-brake equipment and the entire front control were destroyed. In this condition, and with the motorman unconscious, the car continued on its course at a high and dangerous rate of speed, the track at this point being down grade; and while so proceeding uncontrolled it collided with a truck operated by David Noce, causing his death. This truck was also, according to plaintiffs' evidence, on the right-hand car track proceeding in a southerly direction. Of course no gong or bell was sounded as the car approached the second truck; and while it is conceded that the electric car at this time was running at the rate of at least sixty miles an hour, witnesses for the plaintiff stated that it made no unusual noise. It is also conceded that the Witt truck was being operated in violation of a provision of the Motor Vehicle Act of 1919, [Stats. 1919, p. 191], in that it was so loaded as to obstruct a view to the rear and was not equipped with a mirror by which such a view could have been had by its driver.
[1] From the evidence in the case we think it fairly appears that the first collision was the result of the negligence *Page 515 of the motorman driving the defendant's electric car, or of the concurrent negligence of both such motorman and the driver of the Witt truck. Consequently in either event the defendant would be liable for the death of Noce provided Note himself was free from negligence proximately contributing to the collision which caused it.
The defendant claims that the judgment in favor of the plaintiffs cannot stand, for the reason that the evidence shows that the deceased was in fact guilty of such contributory negligence, (1) in operating and driving his motor-truck when the same was so loaded as to obscure his view of the highway to the rear without equipping his truck with a mirror so as to reflect a view of the highway; (2) in driving upon the track in front of this runaway car without looking or listening to ascertain whether a car was approaching or taking the slightest precaution for his own safety.
As to the first of these contentions it is true that a provision of the Motor Vehicle Act which went into effect the day before this accident occurred requires that a person operating a vehicle so covered, loaded, or constructed as to obscure the driver's rear view should have such vehicle equipped with a mirror so as to reflect a view of the highway for at least two hundred feet to the rear; and it is the defendant's contention in this behalf that the omission of the deceased at the time of the collision to comply with this provision of the law rendered him guilty of contributory negligence. This contention, it appears, is not sustained by the evidence, which fails to reveal that the Note truck was so loaded or constructed as to obscure the rearward view of the highway.
[2] As to the other of these contentions, it is true that according to the evidence introduced by the defendant the deceased was driving his truck on the right-hand side of the car track, and that in order to pass two motor-trucks which were standing within about four feet of said track the deceased, without looking back to learn the conditions rearward, turned upon the track just in time, unfortunately, to be struck by the runaway car. On the other hand, according to the evidence introduced by the plaintiff, the deceased did not drive suddenly upon said track but had been upon it for some time when the collision occurred. Under these circumstances we cannot say as a matter of law that *Page 516 the deceased was guilty of contributory negligence. The question, it is clear, was one for the consideration of the jury. The defendant bad no exclusive right to that portion of the road occupied by its tracks, and in fact it makes no such contention. [3] Nor can it be held that one driving on or near the track of a street-car on a public highway shows a lack of ordinary care or is guilty of negligence per se in failing to keep a constant watch behind for an approaching car. (O'Connor v. United Railways, 168 Cal. 43, 49, [141 P. 809].)
The court in effect instructed the jury in part as follows:
"If Noce violated the Motor Vehicle Act in driving a truck so constructed or loaded as to obstruct his rear view, without mirror equipment, he was guilty of negligence, and if such negligence proximately contributed to his injury and death,and the defendant was without negligence, your verdict must be for the defendant.
"The court instructs you that it is the law of this state that 'the person in charge of any vehicle in or upon any public highway, before turning, stopping or changing the course of suet vehicle, and before turning such vehicle when starting the same, shall see first that there is sufficient space for such movement to be made in safety,' and therefore if you find from the evidence in this case that David Noce was operating a motor vehicle and truck along the westerly or right-hand side of the highway and clear of the tracks of the defendant, and did thereafter turn or change the course of such truck so as to go upon the track of the defendant, and failed before turning such truck to see first whether there was sufficient space for such movement to be made in safety, then I instruct you that said David Note was guilty of negligence in so operating and turning said truck, and that if such negligence proximately contributed to his injury and death, your verdict should be for the defendant United Railroads, unless you find the injury couldhave been avoided by ordinary care of the defendant.
"If you find that Noce failed to exercise ordinary care and in consequence thereof received injuries resulting in his death, he was guilty of contributory negligence and your verdict must be in favor of the defendant unless you find theinjury could have been avoided by ordinary care of thedefendant." *Page 517
These instructions, without the italicized portions thereof, were requested by the defendant, and the defendant contends that in giving them as thus modified the court committed prejudicial error. It is true that the court elsewhere in its charge correctly instructed the jury on the subject of contributory negligence.
It may be doubted whether the defendant was entitled to the first two of these instructions as proposed. As to the first of them, as before stated, there is no evidence in the record that the truck of the deceased was so constructed or loaded as to obscure the driver's rearward view. As to the second of them, its offer by the defendant was based upon the theory that the deceased, when he, upon arriving in the vicinity of the standing trucks, deflected his course a little to the left so as to bring his vehicle upon the car track, thus changed his course within the meaning of subdivision "n" of section 20 of the Motor Vehicle Act (Stats. 1919, p. 216), reading as follows: "The person in charge of any vehicle in or upon any public highway, before turning, stopping or changing the course of such vehicle . . . shall see first that there is sufficient space for such movement to be made in safety, and if the movement or operation of other vehicles may reasonably be affected by such turning, stopping or changing of course, shall give plainly visible signal to the persons operating, driving or in charge of such vehicles of his intention so to turn, stop or change his course, either by the use of his hand or arm, or by the use of an approved mechanical or electrical device . . ."
[4] We think a practical and reasonable construction of this provision would not require the driver of a vehicle upon every deviation from a direct course ahead to look back to ascertain the condition of traffic behind him. This particular situation would be covered by his duty to use ordinary care, and whether or not he did so would be for the jury to decide upon the particular circumstances of the case. [5] Had the court contented itself with simply refusing to give these two instructions we perhaps would find no ground for the reversal of the judgment based upon such refusal; but we think it clear that by giving them with the additions indicated by italics it completely deprived the defendant of its defense of contributory negligence on the part of the deceased. This also is unquestionably the case *Page 518 as to the court's modification of the third of said instructions. The effect of this reiteration of the proposition that if the jury found the deceased to have been negligent in a given particular it could only find for the defendant in the event that the latter was free from negligence, was, in the state of the evidence in the case, practically equivalent to directing a verdict for the plaintiff, and certainly deprived the defendant of its defense of contributory negligence on the part of the deceased. If the record contained no evidence of negligence on the part of the deceased which proximately contributed to the collision, the defendant could not be said to have been injured by the modification of its proposed instruction referred to, but such is not the case. There was undoubtedly evidence before the jury from which it could have concluded that the deceased was not free from fault. The fact that in another part of its charge the court instructed the jury as to the effect of negligence on the part of the deceased simply makes the instructions as a whole irreconcilable, leaving the jury to follow one or the other as its sympathies might dictate. This being so, we are of the opinion that the contention of the defendant that these instructions as thus modified were incorrect and seriously prejudicial to its defense must be sustained.
If it be suggested that the modification of the second and third of these instructions was for the purpose of instructing the jury upon the application to the case of the doctrine of last clear chance, the answer is that there was obviously no room for the application of that doctrine, since the undisputed evidence showed that the car which collided with the wagon of the deceased was one over which the defendant had completely lost control prior to the time when the deceased had come into a position of danger. Nor is there anything in the language of the modification which even remotely suggests to a body of laymen that it was meant for that purpose. From the uniformity with which the trial court introduced the modification of these instructions offered by the defendant it seems clear that at the moment of giving them the court had an erroneous view of what constitutes contributory negligence. In any event the conclusion is inescapable that as a result of the instructions the jury must have had a very confused notion on that, to the defendant, vitally important matter. The instructions are *Page 519 contradictory and confusing, and cannot be reconciled. In the case of Guthrie v. Carney, 19 Cal.App. 145, 155, [124 P. 1045], as here, the charge of the court was contradictory and inconsistent in the application of the law to the vital issues of the case, and it was held that as it was impossible to determine which of the trial court's views of the law the jury adopted as the basis of their verdict, the error of the court must be deemed to have been prejudicial. [6] Where two instructions are contradictory in essential parts, the judgment must be reversed. (Hayden v. Constantinople Mining DredgingCo., 3 Cal.App. 136, [84 P. 422].) See, also, People v.Ross, 19 Cal.App. 469, [126 P. 375].
It follows that the judgment must be reversed and the cause remanded for a new trial. It is so ordered.
Waste, P. J., and Richards, J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on August 12, 1921, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on September 12, 1921.
All the Justices concurred, except Lawlor, J., who dissented from an order denying a hearing and filed the following opinion: