Ballos

The plaintiff, while a pedestrian crossing Third Street in the city and county of San Francisco at its intersection with Thornton Avenue, was injured by an automobile operated by the defendant. The injuries were found by a jury to have been caused by the negligence of the defendant, who appeals from a judgment' for damages entered upon the verdict.

It is claimed that certain instructions given the jury were prejudicially erroneous and that the verdict on the issue of contributory negligence is unsupported.

The jury, at the request of the plaintiff, was instructed that “The operator of a motor vehicle has no right to assume that a road is clear but must under all circumstances and at all times be vigilant and must anticipate and expect the presence of others. Accordingly, the fact that the operator of the motor vehicle did not know that anyone was on the highway is no excuse for conduct which would have amounted to recklessness if he had known that another person or vehicle was on the highway.” It is contended that the instruction charged with respect to matters of fact,, assumed facts not proven and incorrectly stated the law as to the duty of the operator of a motor…