Kimball

The only question presented by this appeal is the propriety of an order granting plaintiff’s motion for a new trial for an error of law. Plaintiff filed this action for personal injuries sustained in a collision when her vehicle was rear-ended by a vehicle driven by defendant. After the jury brought in a verdict for defendant, the court granted the motion for a new trial because it had failed to give an instruction based on Vehicle Code section 22110. Defendant argues that the order cannot be sustained as the error was not prejudicial and not objected to by plaintiff. We affirm the order granting a new trial.

The accident occurred on the afternoon of August 17, 1967, in the middle of the abnormally long 2500 block of California Avenue between El Camino Real and Grant in Palo Alto. Plaintiff testified she was driving her 1964 Oldsmobile in the center of the three southbound lanes at a speed of about 25 miles per hour. She had been driving this vehicle since March 1967 and was familiar with its power brakes. The day was clear and bright; the traffic moderate. Defendant, in his Volkswagen station wagon, had been driving behind her at approximately the same rate of speed…