McCormac

I concur in the judgment. But I do not agree to an unrestricted approval of the instructions given to the jury. [2] Instruction No. 15 reads thus: "You are instructed that the driver of a motor vehicle is in charge and control of a dangerous instrumentality, capable of inflicting serious and often fatal injuries, and for that reason he is charged by the law with a higher degree or greater amount of care than the pedestrian." It is not a correct expression of the rule to say that the driver of a motor vehicle is charged by law with a higher degree of care than is the pedestrian. Counsel is in error when he says that the instruction given is the same instruction which was approved in Vedder v. Bireley, 92 Cal.App. 52 [ 267 P. 724 ]. The instruction there under consideration is quoted at the bottom of page 58 (92 Cal. App.) of the opinion. It specifically stated that the defendant and the plaintiff were both chargeable with only the exercise of reasonable care, but that "a greater amount of such care was required of the defendant". But while I think that the use of the words "a higher degree" in said instruction No. 15 was incorrect, I also am of the opinion that the entire clause in…

This is an appeal from a judgment rendered in favor of plaintiff and against defendant Brunson only, for damages on account of injuries sustained by plaintiff on August 7, 1929, when appellant's automobile, northbound, struck plaintiff as she was crossing the highway from west to east, but after she had proceeded approximately from two to six feet beyond the paved portion on the east side of the highway, which was the generally traveled portion thereof, at a point about fifty feet south of the intersection of the highway with another street in the city of Santa Maria. The paved portion of the street at the point where plaintiff was injured was eighteen feet in width. The distance between the eastern edge of the pavement and the property line on the east side of the street was about sixteen feet. There was also evidence showing that traffic could pass on the side where plaintiff was injured (the east side) on that portion of the highway between the curb and the paved or generally traveled portion of the highway. The facts disclosed by the evidence are that the plaintiff alighted from an automobile on the west side of the street and started to cross to the east side; that when she…