Trapani

This is a case in which a large part of the evidence was indirect or circumstantial. The court gave no instructions on the manner in which the jury should consider such evidence, its right to draw reasonable inferences therefrom or the weight to be given to such inferences when drawn by the jury. The plaintiff requested instructions on the subject which are conceded by my associates to state the law correctly, and which the trial court refused to give. This error appears to me to be so basic, and the prejudice from the failure to give such fundamental instructions to be so obvious that nothing advanced in either opinion can convince me otherwise than *10 that the trial court not only committed error in this case but that the error was on such a fundamental subject that it must be held to be prejudicial.

It is basic in the jury system that the jury are the judges of the facts but that they must be guided in determining the weight and effect to be given to the evidence by the rules of law given to them in the instructions of the court.

Section 2061, subdivision 1 of the Code of Civil Procedure requires the court to instruct the jury on all proper occasions: “That their power of…

An automobile driven by the defendant Ernest Holzer collided with David Trapani, the almost 7-year-old son of the plaintiffs. David Trapani was killed. His parents, pursuant to Code of Civil Procedure, section 377, brought this wrongful death action, alleging that the defendant negligently struck and killed David who was standing still on the shoulder of the road. The defendant denied that he had been negligent, and alleged that the accident was unavoidable because the child apparently leaned or stepped into the path of *3 his ear and that the child and his parents were contributorily negligent.

The action was tried twice. On June 3, 1954, a verdict was returned in favor of the defendant but on July 29, 1954, a new trial was granted on the ground that the evidence was insufficient to sustain the verdict. At the retrial of January 27, 1955, the jury again returned a verdict in favor of the defendant. This appeal is taken from the judgment entered on that verdict on the ground of prejudicial error due to the trial court’s refusal to give certain instructions requested by the plaintiffs.

The accident occurred on June 30, 1952, a clear sunny day, at about 5:40 p. m. on Story Road,…

I concur in the judgment. The giving of instructions defining indirect evidence and the weight to be given to it certainly would not be error. It may have been preferable procedure. But the question here is whether refusal to give them, if error, was prejudicial to plaintiffs.

Harold Gina was the only witness who testified that he saw David at the moment of impact. He testified that David was off the paved roadway, and on the unpaved shoulder, when he was struck. By inference, this is evidence that defendant’s car was off the roadway when it struck David. Defendant did not see David, but testified that his ear never swerved from the paved roadway. It requires one mental step to conclude that the car was therefore on the roadway at the moment of *9 impact, but, even if this be direct evidence, defendant’s testimony was but indirect evidence that David was on the roadway when struck. All the other evidence, including the testimony of Miss Van Sickle and the evidence of damage to the car and of location of the body, the boot, and the articles David was carrying, was indirect evidence on the issues of negligence and proximate cause. But I do not see that plaintiffs’ requested…

An automobile driven by the defendant Ernest Holzer collided with David Trapani, the almost 7-year-old son of the plaintiffs. David Trapani was killed. His parents, pursuant to Code of Civil Procedure, section 377, brought this wrongful death action, alleging that the defendant negligently struck and killed David who was standing still on the shoulder of the road. The defendant denied that he had been negligent, and alleged that the accident was unavoidable because the child apparently leaned or stepped into the path of his car and that the child and his parents were contributorily negligent.

The action was tried twice. On June 3, 1954, a verdict was returned in favor of the defendant but on July 29, 1954, a new trial was granted on the ground that the evidence was insufficient to sustain the verdict. At the retrial of January 27, 1955, the jury again returned a verdict in favor of the defendant. This appeal is taken from the judgment entered on that verdict on the ground of prejudicial error due to the trial court's refusal to give certain instructions requested by the plaintiffs.

The accident occurred on June 30, 1952, a clear sunny day, at about 5:40 p.m. on…