Campbell v. City of Los Angeles

82 P.2d 720, 28 Cal. App. 2d 490

• Court: California Court of Appeal
• Decided: September 20, 1938
• Docket: Civ. 11837
• Status: Published

Opinions

McCOMB, J.

From a judgment in favor of plaintiff after

trial before a jury in an action to recover damages for the wrongful death of plaintiff’s son defendant appeals.

The essential facts are:

August 27, 1936, plaintiff and his wife took their three minor sons to a section of Griffith Park located near the northerly bank of the Los Angeles River in the city of Los Angeles. Their son Howard (the deceased) with his two brothers went to play in an excavation which had been made by the United States government in connection with certain work being done for the Los Angeles County Flood Control District. While the three boys were scratching their initials on the embankment adjacent to the excavation, the earth gave way, injuring Howard, with the result that he died shortly thereafter.

This is the sole question necessary for determination:

Did the trial judge commit prejudicial error in instructing the jury as follows:

“There is a presumption that Howard Campbell used ordinary care for his own safety.”

This question must be answered in the affirmative. The law is established in California that where the evidence introduced by plaintiff discloses the acts and conduct of the injured party immediately prior to and at the time in question, the presumption of law set forth in the instruction quoted above is inapplicable. (Mundy v. Marshall, 8 Cal. (2d) 294, 296 [65 Pac. (2d) 65] ; Lindley v. Southern Pac. Co., 18 Cal. App. (2d) 550, 556 [64 Pac. (2d) 490] ; Varner v. Skov, 20 Cal. App. (2d) 232, 240 [67 Pac. (2d) 123] ; Engstrom v. Auburn Automobile Sales Corp., 11 Cal. (2d) 64 [77 Pac. (2d) 1059].)

In Paulsen v. McDuffie, 4 Cal. (2d) 111 [47 Pac. (2d) 709], our Supreme Court in holding it was error to give an instruction similar to the one here involved thus states the rule at page 119:

“It is difficult to see how there was any place for a presumption as to the plaintiff’s conduct. What he did on that occasion was entirely covered by the evidence in the case, and there was neither necessity nor reason for indulging in any presumption upon that subject. That instruction had no place in this ease and should not have been given.”

The giving of the instruction set forth above in a case where it is inapplicable is prejudicial error, if contributory negligence of plaintiff’s decedent would bar a recovery. (Paulsen v. McDuffie, supra.)

Applying the rule of law above stated to the instant case, it is evident that the instruction should not have been given, for the reason that plaintiff offered testimony of witnesses who related in detail and without conflict the acts of the deceased prior to and at the time of the accident. Also there was evidence from which the jury might have found decedent guilty of contributory negligence. It is self-evident that, if deceased was guilty of contributory negligence, plaintiff could not recover in the present case.

. For the foregoing reasons the judgment is reversed.

Crail, P. J., concurred.