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(230 P.)

street. Appellant is doubtless, correct ined 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 rethe approaching automobile was, under all the lies upon the case of Mayer v. Anderson, 36 Cal. App. 740, 173 P. 174. But in that case the facts were as follows:

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In the instant case, the plaintiff testified that she looked to see if automobiles were 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 "the middle of the block." and that she continued walking fast and was struck just as she was about three feet from the curb.

Another case relied upon by appellant is Niosi v. Empire Steam Laundry, 117 Cal. 257, 49 P. 185. In that case it was said, quoting from a New York case:

circumstances at the time and place and conditions of the traffic, negligence on the part of the decedent."

In the instant case the court, acting as a jury, has concluded that under all the circumstances, the conduct of the plaintiff Fannie Mardorf, in proceeding across the street after seeing defendant's automobile a block down the highway, was not negligence, and that the proximate cause of the accident was the heedlessness of defendant. With these conclusions we have no power to interfere. The judgment is affirmed.

We concur: STURTEVANT, J.; NOURSE, J.

PEOPLE v. LANGLOIS et al. (Cr. 806.) (District Court of Appeal, Third District, California. Sept. 13, 1924.)

1. Forgery 44 (1⁄2)-Evidence held sufficient to support verdict.

Evidence held sufficient to support verdict. 2. Criminal law 1159(3) Appellate court cannot reverse verdict because based on conflicting testimony.

Appellate court cannot reverse verdict merely because it is based on conflicting testi

"To enter upon a street crossing in a city where the moving vehicles are numerous, and a collision with them likely to produce serious injury, without looking in both directions along the 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 the omission of reasonable care for one's own safety, but an act of rashness."

Mrs. Mardorf testified that she looked in both directions; that she was aware of the automobile coming toward her, but that it was a block away and she thought that she might safely cross. She started to walk rapidly across the street, at the intersection, in the safety zone; and if one may not do this because an automobile a block away is approaching, pedestrians must abandon hope of ever getting anywhere.

3. Criminal law 829(12)-Refusal to give requested instruction held not error, in view of instruction given.

Where court carefully and particularly instructed that defendants could not be guilty unless all specific elements of crime charged were found beyond a reasonable doubt, refusal to give requested instruction, that jury could not find defendants guilty merely because testimony showed they committed some other offense,

held not error.

4. Criminal law 829(17) — Refusal of instruction to give due weight to testimony of defendants held not error, in view of instruction given.

Appellant has cited the case of Burgesser v. Bullock, 190 Cal. 673, 214 P. 619, but he fairly consider all of the evidence in the case, Where trial court instructed 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 opinioning, 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 view from the view of the District Court of Appeal, distinguishing the cases of Niosi v. Empire Steam Laundry, supra, and Finkle v. Tait, 55 Cal. App. 425, 203 P. 1031, and said:

Appeal from Superior Court, Yuba County; Eugene P. McDaniel, Judge.

E. H. Langlois and another were convicted of forgery, and they appeal from the judgment and from an order denying a new trial. Affirmed.

W. H. Carlin and W. P. Rich, both of Marysville, for appellants.

"It is sufficient for the purposes of a new trial in this case to say that, where the evidence showed that the decedent looked in the 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

PLUMMER, J. The defendants were found guilty of the crime of forgery, and appeal to this court from the order denying their motion for a new trial and the judgment of the court pronounced upon the verdict, finding them guilty of the offense charged in the information.

in their own behalf. The fact that they are defendants in the action makes no difference in your duty to give all due and proper weight to their testimony. It is your duty to give due weight and consideration to their testimony in this case, and, if convincing and carrying with it a belief in its truth, it is your duty to act upon it."

[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 cov-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 doubt 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 sufficient testimony in the transcript to support the verdict. This being true, this court has no right to order a reversal simply because of contrary testimony. The two instructions referred to, asked by the defendants, and refused to be given by the trial court, are as follows, first:

"I instruct you that, even if you should believe from the evidence in this case that the defendants may have committed some offense other than the offense of forgery, namely, the charge laid in the information, you will not be at liberty to find them or either of them guilty, unless you find from the evidence to a moral certainty and beyond all reasonable doubt that they did actually commit the offense of forgery as charged in the information."

And, secondly:

"I further instruct you that in this action the

[4] As to the refusal of the trial court to give the instruction relating to the testimony of the defendants, it appears to be pretty well settled by the recent decisions of this court that, while it is not prejudicial error to give such an instruction, such an instruction ought not to be given, because of its being an invasion of the right of the trial jury to pass upon the facts. In 8 Cal. Jur. § 394, this question is considered and a number of authorities cited. We adopt the language of that section as expressing our views of the law:

"While the rule against singling out the testimony of a witness and instructing with reference to his testimony is especially applicable, if the witness be the defendant, it is not reversible error to instruct the jury that his testimony is to be weighed by the same standard as the testimony of other witnesses. It is usual and proper to give an instruction to the effect

(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- have 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 presume that the defendant has spoken the truth, and is entitled to full credit, unless that presumption is legally repelled by his evidence, is of doubtful propriety and may be refused, although it would not be prejudicial error to give it. It is perhaps unnecessary to instruct a jury as to their right to reject the testimony of the defendant, if they do not believe it."

reject arbitrarily the evidence of any witness. You must fairly consider all of the evidence in the case."

The last sentence of the quoted instruction explicitly informs the jury as to its duty, to wit, to fairly consider all of the evidence in the case. That instruction included the evidence offered by the defendants, as well as that offered by the prosecution, and, after

In People v. Washburn, 54 Cal. App. 124, 201 P. 335, this court, speaking through Jus-giving such instruction, even if there were tice Burnett, held that the refusal to give a similar instruction was not prejudicial. In that case the refused instruction read as follows:

"This defendant, under the laws of California, has a right to take the witness stand in his own behalf. It is your duty to carefully weigh and consider his testimony as you would 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 which the same is entitled that you would apply to any other witness in the case."

In People v. Brown, 62 Cal. App. 96, 216 P, 411, the appellate court of this state, speaking through the Second Appellate District, disposes of this question as follows:

"Moreover, the concluding part of the requested instruction, that which says that the testimony of the defendant in a criminal action 'is to be weighed by you in the same light as the testimony of any other witness in the case,' justified the refusal of the whole instruction. * Any instruction at all as to the credibility of any witness, or the weight to be given to his testimony, is violative of section 19 of article 6 of the Constitution, which provides that judges shall not charge jurors with respect to matters of fact'"-citing several cases.

Upon application for rehearing, the Supreme Court, in 62 Cal. App. 96, 216 P. 411, held that it was unnecessary to decide whether all of the requested instruction was erroneous, as a part thereof precluded the giving of the instruction as requested.

It will thus be seen that the singling out and calling attention to the testimony of a particular witness is not in accordance with the better practice in criminal cases, and infringes closely upon the forbidden line of instruction to juries upon matters of fact. In the instant case, we think the trial court in its instructions gave to the jury all that could be reasonably asked for, when it stated that: "The court does not instruct you in regard to the value and effect of evidence, for you are

no other objection thereto, it would only be a matter of extra labor on the part of the court to particularize as to the testimony of any witness testifying in the case.

The order and judgment appealed from are affirmed.

We concur: FINCH, P. J.; HART, J.

MILOSEVICH et al. v. PACIFIC ELECTRIC

RY. CO. (Civ. 4363.)

(District Court of Appeal, Second District, Division 1, California. Sept. 17, 1924. Hearing Denied by Supreme Court Nov. 13, 1924.)

I. Master and servant 354, 389-Negli

gence of employee held no defense in action against third persons under Compensation Act.

Workmen's Compensation Act May 23, 1917, as amended by St. 1919, p. 922, § 29, subd. (b), providing in actions by employee against employer for compensation contributory negligence of employee (ordinarily a defense under Civ. Code, § 1714) shall not be defense, is limited only to actions by employee against employer, and does not apply to actions by either against third person for employee's injury.

2. Master and servant 354-Negligence of employer held no defense in action against third party for death of employee.

Under Workmen's Compensation Act May 23, 1917, amended by St. 1919, p. 920, § 26, in action for death of employee against third person, defendant is precluded from interposing as defense contributory negligence of employer, in order to defeat plaintiff's claim to extent of amount of compensation paid by employer under Compensation Act, notwithstanding Civ. Code, § 1714.

3. Street railroads 117(19)—Evidence held not to show as matter of law negligence in not watching for street car.

Held, under evidence, that employee of gas company repairing pipe line in street was not contributorily negligent as matter of law in

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

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

4. Negligence 136 (9)-Negligence question of law when but one conclusion reached from evidence.

Negligence, as a rule, is a question of fact for jury, and it is only when but one conclusion can reasonably be reached from evidence that it becomes question of law.

to receive and have paid to it out of any judgment which may be recovered in this action, and that plaintiffs are prosecuting this action as the trustee of the said employer to the extent of said sum of $3,237.64. It is further alleged in said amendment to the answer that the death of said deceased was due to the fault and negligence of the said Los Angeles Gas & Electric Corporation, the em

Appeal from Superior Court, Los Angeles ployer of deceased, and that the injuries and County; Chas. Monroe, Judge.

Action by Zorka Milosevich and others against the Pacific Electric Railway Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Frank Karr, R. C. Gortner, and W. R. Millar, all of Los Angeles, for appellant. Griffith Jones, John C. Craig, Paul Overton, S. W. Guthrie, and Samuel Poorman, Jr., all of Los Angeles, for respondents.

death of said deceased, and the damages, if any, sustained by plaintiffs, were directly and proximately contributed to by the fault, carelessness, and negligence of said employer, and its failure to exercise ordinary care, caution, or prudence for the safety of the said deceased while engaged in said employ

ment.

Upon the trial it was, subject to the objection of plaintiffs that the same was irrelevant, stipulated that deceased was an employee of the Los Angeles Gas & Electric

CURTIS, J. Plaintiffs are the surviving widow and minor children of Vojko Milose-Corporation at the time of the accident, and vich, deceased, and as such instituted this ac

tion against the defendant to recover damages for the death of the said Vojko Milosevich. The action was tried by a jury and a verdict rendered for $5,000 in plaintiffs' favor, and upon this verdict judgment was entered accordingly. Defendant appeals.

Vojko Milosevich was in the employ of the Los Angeles Gas & Electric Corporation, and, while in the employ of this company, and while acting within the course and scope of said employment, was struck and killed by an electric car owned and operated by defendant. The complaint alleges that the defendant was negligent in the operation of its car, and due to such negligence the deceased met his death. The defendant, in its answer, denied negligence on its part, and alleged that the deceased was guilty of contributory negligence which was the proximate cause of his death. In addition to its original answer the defendant, by leave of court, filed an amendment thereto, in which amendment defendant alleged, among other things, that through a proceeding instituted by plaintiffs before the Industrial Accident

Commission of the state of California an

that he was then performing services grow

ing out of said employment and within the his death, and that by reason of the injury course and scope thereof at the time he met les Gas & Electric Corporation, became liato said deceased his employer, the Los Angeble for and obligated to pay said sums agfered to introduce proof upon each and every gregating $3,237.64. Defendant further ofallegation contained in the said amendment to its answer, to which plaintiffs objected on the ground that the same was incompe

tent, irrelevant, and immaterial to the issues in this case, which objection was sustained by the court.

reversal of the judgment in this case upon Appellant bases its appeal and relies for a two grounds: First, error on the part of the court in refusing to permit defendant to show that the Los Angeles Gas & Electric Corporation was guilty of contributory negligence as the proximate cause of the death of the deceased; and, secondly, that the deceased himself was guilty of contributory

negligence.

[1] First. The first ground advanced by appellant in support of its appeal, that is, the alleged error of the court in refusing to permit defendant to show as a defense to this action the contributory negligence of the employer of the deceased, involves a consideration of the Workmen's Compensation Insurance and Safety Act of 1917, as amended in 1919 (Stats. of 1919, pp. 920 and 921), and particularly of section 26 thereof. This section reads as follows:

award of compensation was made by reason of the death of said deceased by said Commission in favor of plaintiffs and against the Los Angeles Gas & Electric Corporation, the employer of deceased, in the sum of $3,134.04, which sum said employer became obligated and liable to pay, and, furthermore, that said employer became liable and obligated to pay the additional sum of $103.60 for the reasonable and necessary medical '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

"26.

(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 of an employee for compensation shall not affect his right of action for damages arising out of injury or death against any person other than the employer; and any employer having paid, or having become obligated to pay, compensation, may likewise bring an action against such other person to recover said damages. If either such employee or such employer shall bring such action against such third person, he shall forthwith notify the other in writing, by personal service or registered mail, of such fact and of the name of the court in which such suit is brought, filing proof thereof in such action, and, if the action be brought by either, the other may, at any time before trial on the facts, join as party plaintiff or must consolidate his action, if brought independently. If the suit be prosecuted by the employer alone evidence of any expenditures which the employer has paid or become obligated to pay by reason of said injury or death shall be admissible, and such expenditures shall be deemed a part of the damages, including a reasonable attorney's fee to be fixed by the court; and if in such suit the employer shall recover more than the amount he has paid or become obligated to pay as compensation he shall pay the excess to the injured employee or other person entitled. If the employee joins in or prosecutes such suit, evidence of the amount of disability indemnity or death benefit paid by the employer shall not be admissible, but proof of all other expenditures on account of said injury or death shall be admissible and shall be deemed part of the damages. The court shall, on application, allow as a first lien against any judgment recovered by the employee the amount of the employer's expenditures for compensation. When any injury or death shall have been suffered by an employee, no release or settlement of any claim for damages by reason of such injury or death and no satisfaction of judgment in such proceedings, shall be valid without the written consent of either both employer and employee, or one of them, togeth

er with the consent of the commission or the

court in which any such action may be pending."

Section 1714 of the Civil Code provides for the defense of contributory negligence. Prior to the enactment of the Workmen's Compensation legislation, this defense was available to the defendant in all actions or proceedings instituted for the purposes of recovering damages growing out of the negligence of the defendant. It has been held that the defense of contributory negligence is available to a defendant, even in cases where the party alleged to be guilty thereof was not a party to said action, but only had a beneficial interest therein. Such, for example, where the administrator of the estate of a child, whose death was caused by the negligence of the defendant, was suing the latter for damages, the contributory negligence of the father, who, as an heir of his child, would share in the proceeds of any judgment recovered in said action, was a proper defense thereto. Wolf v. Lake Erie & Western Railroad Co., 55 Ohio St. 517, 45 N. E. 708, 36 L. R. A. 812; Cleveland C. C., etc., v. Bossert, 44 Ind. App. 245, 87 N. E. 158; Chicago City Ry Co. v. McKeon, 143 Ill. App. 598. Therefore by virtue of said section 1714 of the Civil Code this defense, in so far as it affects the rights of the employer, the Los Angeles Gas & Electric Corporation, is available to the defendant in this action, unless there is some provision contained in the Workmen's Compensation and Insurance Act of 1917, as amended in 1919, which either directly or indirectly deprived the defendant of the right to interpose the same. the terms of this act it is directly provided that, in any proceeding or action instituted by the employee against the employer to recover the compensation provided for by said act, "It shall not be a defense to the employer that the employee may have been guilty of contributory negligence." Subdivision however, is limited to such proceedings or (b), section 29. This provision of the law, actions as may be brought by the employee

By

It will be observed that said section 26 against the employer, and has no reference provides, among other things, that

"The court shall, on application, allow as a first lien against any judgment recovered by the employee the amount of the employer's expenditures for compensation."

From this provision of section 26 it follows that in this action, at the proper time, upon application to the court, the employer of the deceased, the Los Angeles Gas & Electric Corporation, will be entitled to have allowed to it as a first lien against the judgment in this action the sum of $3,237.64. Under these circumstances the defendant in

to an action instituted by either against a third person to recover damages for the injury sustained by the employee. Furthermore, our attention has not been called to any provision of said act which directly denies to the defendant in such an action the right to interpose the defense of contributory negligence. There is, however, one provision of the act which we think at least indirectly bears upon the subject and which must be considered in determining the question before us. This provision is found in section 26 of the act set out in full above, and is as follows:

suit [one against a third person] evidence of "If the employee joins in or prosecutes such the amount of disability indemnity or death benefit paid by the employer shall not be ad

sists that it had the right at the trial of the
action to show that the Los Angeles Gas &
Electric Corporation was guilty of contribu-
tory negligence and thereby defeat the plain-missible."
230 P.-2

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