McPherson

On May 28, 1920, the automobile driven by plaintiff and respondent collided with the stage of the defendant and appellant on a public highway in Tulare County. The respondent charges the appellant with negligence in that connection and asks damages because of injuries to his automobile. The appellant, as a defense and by way of counterclaim, alleged contributory negligence on the part of the respondent. It appears that at the time of the collision smoke of a varying;density, sometimes so thick that witnesses testified an object could not be seen more than ten feet ahead, covered the highway for a considerable distance. A trial by jury was had and verdict and judgment were rendered for the plaintiff and respondent. This appeal is taken therefrom and from- the order denying appellant’s motion for a new trial.

We think the giving of this instruction constitutes reversible error. The rule stated in the second sentence and to which recurrence is made in the fourth would disregard the doctrine of contributory negligence. The third sentence does not cure the vice of the instruction taken as a whole. We now proceed to a fuller discussion of these propositions.

By the second sentence of…