Byrne

Plaintiff recovered judgment against defendant Tallerday for damages sustained in a collision between motor vehicles. Tallerday has appealed from the judgment. The defendants alleged contributory negligence and Tallerday filed a cross-complaint for damages sustained by Mm in the collision.

Appellant contends that there is a substantial conflict in the evidence upon the issues raised by the answer and cross-complaint and that, therefore, certain alleged errors in the instructions are prejudicial. The defendants requested the court to charge the jury as follows:

The court struck out the words herein italicized and gave the instruction as so modified. Appellant says that “an instruction which directs a verdict if the jury finds certain facts to be true is reversibly erroneous unless it embraces all things necessary to show such liability.” But the instruction as given does not direct a verdict for the plaintiff if certain facts are found by the jury to be true. It merely states two facts which must be found in favor of plaintiff before he can recover. In at least three other instructions the court stated that plaintiff could not recover if the jury found that he was guilty of…