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(230 P.) street. Appellant is doubtless, correct in /ed to cross the street, it is for the jury to say this contention, but the judgment does not whether or not his conduct with reference to rest upon this finding alone, Appellant re- the approaching automobile was, under all the lies upon the case of Mayer v. Anderson, 36 circumstances at the time and place and con

ditions of the traffic, degligence on the part of Cal. App. 740, 173 P. 174. But in that case

the decedent." the facts were as follows: "According to the undisputed evidence of all

In the instant case the court, acting as a his witnesses, the plaintiff, at 5 o'clock in the jury, has concluded that under all the cirafternoon, when traffic upon the intersection cumstances, the conduct of the plaintiff Fan

was heavy, walked out upon the cross- nie Mardorf, in proceeding across the street ing looking straight ahead, without glancing to after seeing defendant's automobile a block either side, and was absolutely oblivious to the down the highway, was not negligence, and proximity of the automobile right up to the that the proximate cause of the accident was moment of the impact, at which time he had the heedlessness of defendant. With these traversed about three-quarters of the distance conclusions we have no power to interfere. across the street."

The judgment is affirmed. In the instant case, the plaintiff testified that she looked to see if automobiles were We concur: STURTEVANT, J.; NOURSE, J. approaching when she left the sidewalk and saw defendant's machine when it was "way down"; that while she was crossing, she looked again and saw the automobile about PEOPLE v. LANGLOIS et al. (Cr. 806.) "the middle of the block," and that she con

(District Court of Appeal, Third District, Caltinued walking fast and was struck just as

ifornia. Sept. 13, 1924.) she was about three feet from the curb.

Another case relied upon by appellant is 1. Forgery On 44(1/2)-Evidence held sufficient Niosi v. Empire Steam Laundry, 117 Cal. to support verdict. 257, 49 P. 185. In that case it was said, Evidence held sufficient to support verdict. quoting from a New York case:

2. Criminal law Om 1159(3) - Appellate court "To enter upon a street crossing in a city cannot reverse verdict because based on conwhere the moving vehicles are numerous, and flicting testimony. a collision with them likely to produce serious Appellate court cannot

verdict injury, without looking in both directions along merely because it is based on conflicting testithe street to ascertain whether any are ap- mony. proaching, and, if so, their rate of speed, and how far from the crossing, would not only be 3. Criminal law Om 829(12)—Refusal to give the omission of reasonable care for one's own

requested instruction held not error, in view safety, but an act of rashness."

of instruction given.

Where court carefully and particularly inMrs. Mardorf testified that she looked structed that defendants could not be guilty unin both directions; that she was aware of less all specific elements of crime charged were the automobile coming toward her, but that found beyond a reasonable doubt, refusal to it was a block away and she thought that give requested instruction, that jury could not she might safely cross. She started to walk

find defendants guilty merely because testimony rapidly across the street, at the intersection, held not error.

showed they committed some other offense, in the safety zone; and if one may not do this because an automobile a block away is 4. Criminal law. Emo829(17) - Refusal of inapproaching, pedestrians must abandon hope

struction to give due weight to testimony of of ever getting anywhere.

defendants held not error, in view of instruc

tion given. Appellant has cited the case of Burgesser

Where trial court v. Bullock, 190 Cal. 673, 214 P. 619, but he fairly consider all of the evidence in the case,

structed jury they must has evidently overlooked the fact that the defendants could not complain of refusal to language of that decision is not the law of give requested instruction to give due and propthis state, as a hearing was granted in the er .weight to defendants' testimony, if convinccause by the Supreme Court and the opinion ing, and carrying with it a belief in its truth. filed by that court is reported in 190 Cal. 673, 214 P. 649. That court took a different Appeal from Superior Court, Yuba Counview from the view of the District Court of ty; Eugene P. McDaniel, Judge. Appeal, distinguishing the cases of Niosi v.

E. H. Langlois and another were convicted Empire Steam Laundry, supra, and Finkle of forgery, and they appeal from the judgv. Tait, 55 Cal. App. 425, 203 P. 1031, and ment and from an order denying a new trial. said:

Affirmed. "It is sufficient for the purposes of a new trial in this case to say that, where the evi

W. H. Carlin and W. P. Rich, both of dence showed that the decedent looked in the Marysville, for appellants. direction of the approaching automobile and

U. S. Webb, Atty. Gen., and J. Charles saw the automobile, and nevertheless proceed-Jones, Deputy Atty. Gen., for the People.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

upon it."

PLUMMER, J. The defendants were in their own behalf. The fact that they are defound guilty of the crime of forgery, and fendants in the action makes no difference in appeal to this court from the order denying your duty to give all due and proper weight to their motion for a new trial and the judg- their testimony. It is your duty to give due ment of the court pronounced upon the ver- this case, and, if convincing and carrying with

weight and consideration to their testimony in dict, finding them guilty of the offense it a belief in its truth, it is your duty to act charged in the information.

[1-3] Two reasons are assigned for the reversal of the judgment and order above The first instruction above set forth connamed: First, that the testimony is insuffi- tains within itself nothing objectionable, but cient to sustain the verdict; secondly, that an examination of the record shows that the the court refused to give certain instructions trial court very carefully instructed the jury asked for by defendants. The testimony as to every material point covered by the shows that the defendants passed the checks issues, and that the giving of such instrucreferred to in the information. The only tion would have in no wise aided the jury question was whether the signature thereto in reaching a conclusion. The jury was inwas genuine or forged; and, if forged, were structed that the burden rested upon the the defendants responsible therefor? The de- prosecution to establish every element necfendant E. H. Langlois, during the time cor-essary to constitute the guilt of the defendered by the passing of the check, was the ants to a moral certainty and beyond a reabookkeeper for the Eng Construction Com- 'sonable doubt; that the crime alleged in pany, and in such capacity was accustomed the information and every fact material to to make out checks for the payment of bills constitute such crime must likewise be provagainst the company, which checks were al- ed beyond a reasonable doubt, and that, if ways signed by the superintendent of the the jurors entertained any reasonable dotiht company, named J. W. Keate.

The checks upon any single fact or element necessary to passed by the defendants, and especially the constitute the crime, it was the duty of the one in controversy in this action, appear to jury to acquit. The jury was likewise inhave been drawn in favor of one James structed that before they could convict they Wise, in payment of a labor claim against must necessarily find beyond a reasonable the company, and signed by J. W. Keate. doubt that the purported signature was a Both defendants participated in the pas- forgery, that the defendants knew it was a sage of the check just referred to. On the forgery, that the defendants were the ones part of the prosecution it was contended who committed the forgery, and that it was that the signature purporting to be that of all with felonious intent, etc. Having been J. W. Keate was actually in the handwriting instructed, as we have said, very carefully of the defendant Violet Langlois. This con- and particularly that the defendants could tention was supported by the testimony of a not be found guilty, unless all the specific handwriting expert, who made an examina-elements of the crime charged were found tion thereof, having before him admittedly by the jury beyond a reasonable doubt, it genuine signatures of the defendant Violet becomes immaterial that the jury was not Langlois. Other witnesses testified that they charged that they could not find the defendthought the signature the handwriting of J. ants guilty of forgery, because the testimony W. Keate. J. W. Keate himself testified that also showed that some other offense was it was not in his handwriting. If believed by committed. the jury, there unquestionably appears suffi [4] As to the refusal of the trial court to cient testimony in the transcript to support | give the instruction relating to the testimony the verdict. This being true, this court has of the defendants, it appears to be pretty no right to order a reversal simply because of well settled by the recent decisions of this contrary testimony. The two instructions court that, while it is not prejudicial error referred to, asked by the defendants, and re- to give such an instruction, such an instrucfused to be given by the trial court, are as tion ought not to be given, because of its follows, first:

being an invasion of the right of the trial "I instruct you that, even if you should be jury to pass upon the facts. In 8 Cal. Jur. lieve from the evidence in this case that the de- $ 394, this question is considered and a numfendants may have committed some offense ber of authorities cited. We adopt the lanother than the offense of forgery, namely, the guage of that section as expressing our views charge laid in the information, you will not be of the law: at liberty to find them or either of them guilty, unless you find from the evidence to a moral “While the rule against singling out the tegcertainty and beyond all reasonable doubt that timony of a witness and instructing with referthey did actually commit the offense of forgery ence to his testimony is especially applicable, if as charged in the information."

the witness be the defendant, it is not reversible error to instruct the jury that his testi

mony is to be weighed by the same standard as And, secondly:

the testimony of other witnesses. It is usual "I further instruct you that in this action the and proper to give an instruction to the effect defendants have taken the stand as witnesses that the defendant's testimony should not be

(230 P.) rejected solely because he stands accused of a ( the judges of the value and effect of evidence crime, but should be fairly and impartially addressed to you and of the credibility of the judged under the rules of evidence given. But, witnesses. Your power of judgment of the efinasmuch as this is on the border line of error fect of evidence, however, is not arbitrary, but and is subject to the objection that it singles ; is to be exercised with legal discretion and in out the testimony of a single witness, it may subordination to the rules of evidence. You be refused, and particularly when general in no right to go outside of the evidence adstructions relating to all the witnesses are giv-mitted by the court, and you have no right to en. An instruction that the jury are bound to reject arbitrarily the evidence of any witness. presume that the defendant has spoken the You must fairly consider all of the evidence in truth, and is entitled to full credit, unless that the case." presumption is legally repelled by his evidence, is of doubtful propriety and may be refused, The last sentence of the quoted instruction although it would not be prejudicial error to explicitly informs the jury as to its duty, to give it. It is perhaps unnecessary to instruct | wit, to fairly consider all of the evidence in a jury as to their right to reject the testimony the case. That instruction included the evi. of the defendant, if they do not believe it."

dence offered by the defendants, as well as In People v. Washburn, 54 Cal. App. 124, that offered by the prosecution, and, after 201 P. 335, this court, speaking through Jus- giving such instruction, even if there were tice Burnett, held that the refusal to give a no other objection thereto, it would only be similar instruction was not prejudicial. In a matter of extra labor on the part of the that case the refused instruction read as fol- court to particularize as to the testimony of lows:

any witness testifying in the case. "This defendant, under the laws of Califor

The order and judgment appealed from nia, has a right to take the witness stand in are affirmed. his own behalf. It is your duty to carefully weigh and consider his testimony as you would We concur: FINCH, P. J.; HART, J. the testimony of any other witness.

You should not reject and disregard his testimony merely because he is the defendant in this case, but you should apply to his testimony the same rules in determining the credence to MILOSEVICH et al. v. PACIFIC ELECTRIC which the same is entitled that you would ap

RY. CO. (Civ. 4363.) ply to any other witness in the case.”

(District Court of Appeal, Second District, DiIn People v. Brown, 62 Cal. App. 96, 216 P, vision 1, California. Sept. 17, 1924. Hear411, the appellate court of this state, speak ing Denied by Supreme Court Noy. 13, 1924.) ing through the Second Appellate District,

1. Master and servant O354, 389 - Negli. disposes of this question as follows:

gence of employee held no defense in action "Moreover, the concluding part of the re against third persons under Compensation quested instruction, that which says that the Act. testimony of the defendant in a criminal action

Workmen's Compensation Act May 23, 'is to be weighed by you in the same light as 1917, as amended by St. 1919, p. 922, § 29, the testimony of any other witness in the case,' subd. (b), providing in actions by employee justified the refusal of the whole instruction. I against employer for compensation contribu

* Any instruction at all as to the cred- tory negligence of employee (ordinarily a deibility of any witness, or the weight to be given fense under Civ. Code, $ 1714) shall not be deto his testimony, is violative of section 19 of fense, is limited only to actions by employee article 6 of the Constitution, which provides against employer, and does not apply to actions that judges shall not charge jurors with respect by either against third person for employee's to matters of fact' "--citing several cases.

injury. Upon application for rehearing, the Su-2. Master and servant fin 354–Negligence of preme Court, in 62 Cal. App. 96, 216 P. 411, employer held no defense in action against held that it was unnecessary to decide wheth third party for death of employee. er all of the requested instruction was er

Under Workmen's Compensation Act May roneous, as a part thereof precluded the giv. 23, 1917, amended by St. 1919, p. 920, $ 26, in ing of the instruction as requested.

action for death of employee against third perIt will thus be seen that the singling out son, defendant is precluded from interposing as

defense contributory negligence of employer, in and calling attention to the testimony of a

order to defeat plaintiff's claim to extent of particular witness is not in accordance with amount of compensation paid by employer unthe better practice in criminal cases, and in- der Compensation Act, notwithstanding Civ. fringes closely upon the forbidden line of in- Code, f 1714. struction to juries upon matters of fact. In the instant case, we think the trial court in 3. Street railroads mm 117(19)—Evidence held

not to show as matter of law negligence in its instructions gave to the jury all that could

not watching for street car. be reasonably asked for, when it stated that:

Held, under evidence, that employee of gas "The court does not instruct you in regard company repairing pipe line in street was not to the value and effect of evidence, for you are contributorily negligent as matter of law in

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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failing to see or hear approaching street car, Gas & Electric Corporation will be entitled which struck him.

to receive and have paid to it out of any 4. Negligence Bow 136(9)—Negligence question judgment which may be recovered in this ac

of law when but one conclusion reached from tion, and that plaintiffs are prosecuting this evidence.

action as the trustee of the said employer Negligence, as a rule, is a question of fact to the extent of said sum of $3,237.64. It is for jury, and it is only when but one conclusion further alleged in said amendment to the ancan reasonably be reached from evidence that swer that the death of said deceased was due it becomes question of law.

to the fault and negligence of the said Los Appeal from Superior Court, Los Angeles ployer of deceased, and that the injuries and

Angeles Gas & Electric Corporation, the emCounty; Chas. Monroe, Judge.

death of said deceased, and the damages, Action by Zorka Milosevich and others if any, sustained by plaintiffs, were directly against the Pacific Electric Railway Com- and proximately contributed to by the fault, pany. Judgment for plaintiffs, and defend- carelessness, and negligence of said employant appeals. Afirmed.

er, and its failure to exercise ordinary care, Frank Karr, R. C. Gortner, and W. R. caution, or prudence for the safety of the Millar, all of Los Angeles, for appellant. said deceased while engaged in said employGriffith Jones, John C. Craig, Paul Over

ment. ton, S. W. Guthrie, and Samuel Poorman, Jr.,

Upon the trial it was, subject to the oball of Los Angeles, for respondents.

jection of plaintiffs that the same was ir

relevant, stipulated that deceased was an emCURTIS, J. Plaintiffs are the surviving

ployee of the Los Angeles Gas & Electric widow and minor children of Vojko Milose Corporation at the time of the accident, and

that he was then performing services growvich, deceased, and as such instituted this action against the defendant to recover damages ing out of said employment and within the for the death of the said Vojko Milosevich. his death, and that by reason of the injury

course and scope thereof at the time he met The action was tried by a jury and a verdict rendered for $5,000 in plaintiffs' favor, les Gas & Electric Corporation, became lia

to said deceased his employer, the Los Angeand upon this verdict judgment was entered ble for and obligated to pay said sums agaccordingly. Defendant appeals. Vojko Milosevich was in the employ offered to introduce proof upon each and every

gregating $3,237.64. Defendant further ofthe Los Angeles Gas & Electric Corporation, allegation contained in the said amendment and, while in the employ of this company, to its answer, to which plaintiffs objected and while acting within the course and scope

on the ground that the same was incompeof said employment, was struck and killed by an electric car owned and operated by in this case, which objection was sustained

tent, irrelevant, and immaterial to the issues defendant. The complaint alleges that the

by the court. defendant was negligent in the operation of its car, and due to such negligence the de- reversal of the judgment in this case upon

Appellant bases its appeal and relies for a ceased met his death. The defendant, in its two grounds: First, error on the part of the answer, denied negligence on its part, and

court in refusing to permit defendant to alleged that the deceased was guilty of con

show that the Los Angeles Gas & Electric tributory negligence which was the proxi- Corporation was guilty of contributory neg. mate cause of his death. In addition to its ligence as the proximate cause of the death original answer the defendant, by leave of court, filed an amendment thereto, in which of the deceased; and, secondly, that the de

ceased himself was guilty of contributory amendment defendant alleged, among other

negligence. things, that through a proceeding instituted

[1] First. The first ground advanced by by plaintiffs before the Industrial Accident appellant in support of its appeal, that is, Commission of the state of California an

the alleged error of the court in refusing to award of compensation was made by reason permit defendant to show as a defense to of the death of said deceased by said Com this action the contributory negligence of the mission in favor of plaintiffs and against employer of the deceased, involves a considthe Los Angeles Gas & Electric Corporation, eration of the Workmen's Compensation Inthe employer of deceased, in the sum of $3,

surance and Safety Act of 1917, as amended 134.04, which sum said employer became in 1919 (Stats. of 1919, pp. 920 and 921), and obligated and liable to pay, and, furthermore, particularly of section 26 thereof. This secthat said employer became liable and ob- tion reads as follows: ligated to pay the additional sum of $103.60 for the reasonable and necessary medical

26. Employee.' Suits for damages from and hospital expense of said deceased caused person other than employer. If employce joins

in suit, The term 'employee,' as used in this by the injury resulting in his death. These section, shall include the person injured and two amounts, aggregating $3,237.64, it is al- any other person in whom a claim may arise leged in said amendment, the Los Angeles | by reason of the injury or death of such in

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For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(230 P.) jured person. The death of the employee, or, tiffs' claim to the extent of the amount which of any other person, shall not abate any right might eventually go to said corporation. of action established by this section. The claim Section 1714 of the Civil Code provides for of an employee for compensation shall not af. the defense of contributory negligence. Prior fect his right of action for damages arising out to the enactment of the Workmen's Compen. of injury or death against any person other than the employer; and any employer having

sation legislation, this defense was available paid, or having become obligated to pay, com- to the defendant in all actions or proceedings pensation, may likewise bring an action against instituted for the purposes of recovering such other person to recover said damages. If damages growing out of the negligence of the either such employee or such employer shall defendant. It has been held that the defense bring such action against such third person, of contributory negligence is available to he shall forthwith notify the other in writing, a defendant, even in cases where the party by personal service or registered mail, of such fact and of the name of the court in which alleged to be guilty thereof was not a party such suit is brought, filing proof thereof in such

to said action, but only had a beneficial inaction, and, if the action be brought by either, terest therein. Such, for example, where the the other may, at any time before trial on the administrator of the estate of a child, whose facts, join as party plaintiff or must consoli- death was caused by the negligence of the date his action, if brought independently. If defendant, was suing the latter for damages, the suit be prosecuted by the employer alone the contributory negligence of the father, evidence of any expenditures which the em- who, as an heir of his child, would share in ployer has paid or become obligated to pay by the proceeds of any judgment recovered in reason of said injury or death shall be admissi- said action, was a proper defense thereto. ble, and such expenditures shall be deemed a Wolf v. Lake Erie & Western Railroad Co., part of the damages, including a reasonable 55 Ohio St. 517, 45 N. E. 70S, 36 L. R. A. attorney's fee to be fixed by the court; and if 812; Cleveland C. C., etc., v. Bossert, 44 in such suit the employer shall recover more Ind. App. 245, 87 N. E. 158; Chicago City than the amount he has paid or become obli- Ry Co. v. McKeon, 143 Ill. App. 598. Theregated to pay as compensation he shall pay the fore by virtue of said section 1714 of the excess to the injured employee or other person Civil Code this defense, in so far as it afentitled. If the employee joins in or prosecutes fects the rights of the employer, the Los such suit, evidence of the amount of disability indemnity or death benefit paid by the em Angeles Gas & Electric Corporation, is availployer shall not be admissible, but proof of all able to the defendant in this action, unless other expenditures on account of said injury or there is some provision contained in the death shall be admissible and shall be deemed Workmen's Compensation and Insurance Act part of the damages. The court shall, on ap- of 1917, as amended in 1919, which either plication, allow as a first lien against any judg directly or indirectly deprived the defendment recovered by the employee the amount of ant of the right to interpose the same. By the employer's expenditures for compensation. When any injury or death shall have been the terms of this act it is directly provided suffered by an employee, no release or settle that, in any proceeding or action instituted ment of any claim for damages by reason of by the employee against the employer to resuch injury or death and no satisfaction of cover the compensation provided for by said judgment in such proceedings, shall be valid act, “It shall not be a defense to the emwithout the written consent of either both ployer that the employee may have been guilemployer and employee, or one of them, togeth-ty of contributory negligence." Subdivision er with the consent of the commission or the court in which any such action may be pend-(h), section 29. This provision of the law, ing."

however, is limited to such proceedings or

actions as may be brought by the employee It will be observed that said section 26 against the employer, and has no reference provides, among other things, that

to an action instituted by either against a

third person to recover damages for the in“The court shall, on application, allow as a jury sustained by the employee. Furtherfirst lien against any judgment recovered by more, our attention has not been called to the employee the amount of the employer's ex

any provision of said act which directly dependitures for compensation."

nies to the defendant in such an action the

right to interpose the defense of contribuFrom this provision of section 26 it fol- tory negligence. There is, however, one prolows that in this action, at the proper time, vision of the act which we think at least upon application to the court, the employer indirectly bears upon the subject and which of the deceased, the Los Angeles Gas & Elec- must be considered in determining the questric Corporation, will be entitled to have al- tion before us. This provision is found in lowed to it as a first lien against the judg. section 26 of the act set out in full above, ment in this action the sum of $3,237.61. and is as follows: Under these circumstances the defendant in

“If the employee joins in or prosecutes such sists that it had the right at the trial of the suit [one against a third person) evidence of action to show that the Los Angeles Gas & the amount of disability indemnity or death Electric Corporation was guilty of contribu- benefit paid by the employer shall not be adtory negligence and thereby defeat the plain missible."

230 P.--2

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