Clinkscales v. Carver ( 1943 )

SHENK, J.

I dissent.—The trial court instructed the jury that the defendant was guilty of negligence as a matter of law if he failed to stop on Highline Road at its intersection with Oat Canal Road. The basis for the instruction was the false assumption that Highline Road was signposted with a stop-sign as then provided by section 577 of the Vehicle Code. There was no stop-sign so posted. Some stop signal was installed at the intersection but without any legal authorization therefor. The question of the defendant’s negligence under the circumstances was, in my opinion, a question of fact for the jury. The cases cited in the majority opinion go no further than to hold that the jury may consider the existence of a so-called de facto stop-sign in determining the question of the defendant’s negligence. The withdrawal of that issue from the jury in the present case was manifestly prejudicial. At the time of the impact the Clinkscales car was traveling on the left or wrong side of the road and, from the evidence of the physical facts, must have been going at an excessive rate of speed. Freed from the erroneous instruction the jury might well have found that the negligence of the deceased was the sole proximate cause of the collision.

Edmonds, J., concurred.