Butigan

Dissenting.—Since at least as early as the year 1897 it has been consistently held that where defendants deny negligence on their part an instruction may properly *662 be given explaining to the jury “the well-settled rule of law that for inevitable accident occurring when one with due care is engaged in a lawful business, damages may not be recovered.” (Niosi v. Empire Steam Laundry (1897), 117 Cal. 257, 259, 261 [ 49 P. 185 ] [intersection accident] ; see also 35 Cal.Jur.2d 726, § 206, and cases there cited.) By the majority opinion in the present case we are now told that “In reality, the so-called defense of unavoidable accident has no legitimate place in our pleading,” 1 and "that “It appears to be an obsolete remnant from a time when damages for injuries to person or property directly caused by a voluntary act of the defendant could be recovered in an action of trespass and when strict liability would be imposed unless the defendant proved that the injury was caused through ‘inevitable accident.’ ” (P. 667.) It is my view that the test as to whether the instruction given in this case was error is not properly to be resolved as a question of pleading.

It is true that…

I dissent.

The majority reverses the judgment in this case solely because of its determination that it was prejudicial error to give any instruction on “unavoidable or inevitable” accident. In arriving at this conclusion, the majority expressly overrules Parker v. Womack, 37 Cal.2d 116 [ 230 P.2d 823 ], and impliedly overrules numerous other cases which declare that such an instruction correctly states the law.

An instruction on this subject has been given for many years by the trial judges of this state as a so-called stock instruction in negligence cases. Instructions similar to the challenged instruction have been consistently approved by the appellate courts and, as indicated by Mr. Justice Schauer, the concept of “unavoidable accident” has been given express legislative recognition in section 602 of the Vehicle Code. I therefore cannot join the majority in declaring that “the use of an unavoidable accident instruction should be disapproved” or in determining that the giving of the challenged instruction constituted error in this case.

I find no error in the record other than certain invited error, concerning which the majority properly holds that plaintiff “ is in no…

This action was brought for damages for personal injuries suffered by Mrs. Butigan when a taxicab in which she was riding as a passenger and which was owned by defendant Yellow Cab Company and driven by defendant Bland collided with an automobile operated by defendant Wurm. She appeals from a judgment entered on a verdict in favor of all three defendants, contending that the court erred in instructing the jury. *

The accident happened in the daytime on Silverlake Boulevard in Los Angeles, in a business district. When the taxicab called by plaintiff arrived at her residence on the boulevard it was headed north. Her destination was in a southerly direction, but the driver first proceeded north. Before reaching the intersection with Effie Street, he turned the cab toward the left over the center line of Silverlake Boulevard. In the west half of the boulevard the cab was hit by the automobile of Wurm, who was driving south on the proper side of the center line, and plaintiff was injured.

Bland testified that he intended to enter a driveway on the west side of Silverlake Boulevard and to back out, turning so as to face south. He did not see any oncoming southbound traffic, and he…

This action was brought for damages for personal injuries suffered by Mrs. Butigan when a taxicab in which she was riding as a passenger and which was owned by defendant Yellow Cab Company and driven by defendant Bland collided with an automobile operated by defendant Wurm. She appeals from a judgment entered on a verdict in favor of all three defendants, contending that the court erred in instructing the jury. [*]

The accident happened in the daytime on Silverlake Boulevard in Los Angeles, in a business district. When the taxicab called by plaintiff arrived at her residence on the boulevard it was headed north. Her destination was in a southerly direction, but the driver first proceeded north. Before reaching the intersection with Effie Street, he turned the cab toward the left over the center line of Silverlake Boulevard. In the west half of the boulevard the cab was hit by the automobile of Wurm, who was driving south on the proper side of the center line, and plaintiff was injured.

Bland testified that he intended to enter a driveway on the west side of Silverlake Boulevard and to back out, turning so as to face south. He did not see any oncoming southbound…