Wirthman

This is an action wherein plaintiff sought

and recovered a judgment for damages for personal injuries occasioned by being struck by the automobile of defendant Isenstein, which was at the time being operated by defendant Timber. Defendants have appealed, alleging error in the action of the trial court in giving and refusing certain instructions.

The accident which gave rise to this proceeding occurred when defendant Truber suddenly increased the speed of the machine and swerved on to the left-hand side of the street. This he did, it is claimed, to avoid a collision with another machine which was impending because of the failure of his brakes to hold properly. Defendants’ failure to keep the brakes in proper condition was not alleged in the complaint; the testimony as to the defective brakes was relied upon by defendants as an explanation of and defense to the alleged improper driving of the car.

The trial court charged the jury in the words of the state Motor Vehicle Act that “All motor vehicles upon public highways must be provided at all times with adequate brakes kept in good working order.” Defendants insist that this instruction was tantamount to a charge that defendants…