HELEN ELLISON, as Administratrix, etc., Respondent, v. LANG TRANSPORTATION CO. (a Corporation), Appellant; CAETANO V. ANDRADE, as Administrator, etc., Respondent, v. LANG TRANSPORTATION CO. (a Corporation), Appellant, 12 Cal. 2d 355

SHENK, J. The defendant has appealed from judgments rendered against it in two actions consolidated for trial. Each action was prosecuted by the personal representative of one who met death in a collision between the automobile driven by the decedent Ellison, in which the decedent Nora Andrade was riding, and a loaded trailer attached to a truck being operated by the defendant's employee. Each plaintiff sought damages for alleged wrongful death. The actions were tried twice.

The first trial resulted in verdicts in the amounts of $30,000 and $20,000 awarded respectively to the representatives of Ellison and Nora Andrade. The verdicts and the judgments entered thereon were set aside on motions for new trial. On the second trial the jury returned verdicts of $12,000 and $10,000 respectively. The appeal is from the judgments entered on these verdicts. The decedent Ellison was 36 years of age and supported his wife and four minor children by earning $100 per month as a railroad employee. The oldest child was ten years of age at the time of the accident.

At the time of her death Nora Andrade was 33 years of age. She and her husband made their home with their four minor children ranging in age from 4 to 12 years when the accident occurred. It was in evidence that Nora Andrade also contributed to the family living expenses to the extent of $50 or $60 a month by doing housework for school teachers and doctors. Both families lived in Bakersfield.

Claude Ellison, Nora Andrade, James Ellis, Rachel Keys, and three of the Andrade children were being driven by Ellison in his Studebaker coach from Los Angeles to Bakersfield over the Ridge Route in the early morning hours of November 13, 1934. Between Castaic and Gorman, at 2 or 2:30 o’clock the Studebaker, going about 35 miles an hour, struck the rear end of the defendant’s truck and trailer, loaded with steel, going about four miles per hour up the grade. Both Claude Ellison and Nora Andrade were killed by the impact.

Whether the judgments are sustainable depends on the sufficiency of the evidence to support the jury’s implied findings that the defendant was negligent and that the respective decedents were not guilty of contributory negligence; and on the correctness of the rulings of the court made in the course of the trial and in instructing the jury. Existence of negligence for which the defendant may be held liable depends on whether there was sufficient evidence that the truck was proceeding without lights or without sufficient warning lights on the loaded trailer and on the steel projecting from the rear thereof.

The evidence on this question was in conflict. The truck driver testified that he left Los Angeles at 5 P. M. with his load. He examined his lights, including the lights fastened to the rear of the extended steel', at Glendale. At Roscoe he again examined his lights and found they were burning. Here he lighted a red globe lantern and placed it on the projecting metal. He stopped at the northerly edge of San Fernando for his supper, and turned off only his headlights while his truck was parked at the side of the road. After supper he noted that all rear and side lights were burning.

He thereupon turned on his headlights and proceeded on his way. At Castaie about midnight he stopped for lunch, again turning off only his headlights. He then proceeded again after turning on his headlights. As he passed Paradise Garage, about 700 feet southerly from the point of the accident, he saw on his left the reflection of his headlights and some of the side and extended lights. The surviving occupants in the Studebaker automobile testified that no lights were observable, but that immediately preceding the crash “there was a big black object”.

There was other evidence on both sides of the question of the condition of the lights both before and after the accident, including evidence from which the jury could conclude that there was not sufficient illumination at the rear end of the trailer and no illumination on the projecting steel. The state of the record on the questions of negligence and contributory negligence is such that the evidence for the plaintiffs, if believed by the jury, is sufficient to sustain the verdicts in their favor.

The defendant specifies some twelve alleged erroneous rulings claimed to be prejudicial, in giving or refusing instructions and in the admission of evidence. At the plaintiffs’ request the court instructed the jury that “the presumption is that a person takes ordinary care of his own concerns. This presumption is in itself a species of evidence and it shall prevail and control your deliberations until and unless it is overcome by satisfactory evidence”.

The defendant contends that the giving of such an instruction is prejudicially erroneous in a case where the plaintiffs, as here, presented testimony as to the details of the accident and the conduct of the decedents before and at the time of the occurrence relying on Kelly v. Fretz, 19 Cal. App. (2d) 356 [65 Pac. (2d) 914], and other cases following Mar Shee v. Maryland Assur.

Corp., 190 Cal. 1 [210 Pac. 269], to the effect that a presumption in favor of a party is entirely dispelled by the testimony of the party himself or of his witnesses, which is wholly irreconcilable with the presumption sought to be invoked. It may be assumed that the giving of an instruction indicating to the jury that a decedent is presumed to have taken due care of his own concerns is erroneous in a ease where all the details of his conduct and of the accident are disclosed to the contrary by those seeking recovery on account of his alleged wrongful death.

In other words, it may be assumed that in such a case there is no place for the presumption under the rule of the cases relied upon. However, the giving of the quoted instruction in this case may not property be objected to by the defendant. The instruction told the jury that the presumption remained only until it was overcome by satisfactory evidence. This qualifying language was not included in the instruction given in the ease of Kelly v. Fretz, supra, where the effect of the instruction was held to be a statement to the jury that the deceased was presumed to have been free from contributory negligence.

That was not the effect of the instruction in this case. Furthermore, the defendant asked for instructions concerning presumptions favorable to itself, which the court gave with the qualification that such presumptions were a species of evidence and should prevail and control the deliberations of the jury until and unless overcome by satisfactory evidence.

We also note that at the defendant’s instance the court instructed the jury that “all drivers of vehicles on a public highway are required by law to keep a vigilant lookout ahead so as to avoid, if reasonably possible, a collision with any other vehicle or person lawfully upon such highway.

Failure to keep such lookout, or failure to see that which may be readily seen, if the driver is looking, would constitute negligence as a matter of law’’, and that even though the jury find “that the statutory limit of speed of 45 miles per hour was not being exceeded by the . driver of the automobile in which plaintiffs were riding, yet the rate of speed at which an automobile may be traveling may be held under some circumstances to be negligence.

That is to say, the operator of an automobile is not necessarily free from negligence by a showing, simply, that at the time of the accident he was running at a rate of speed allowed by law. He still remains bound to anticipate that he may meet persons or vehicles at any point on the highway, and he must, in order to avoid a charge of negligence, keep a proper lookout for them and keep his automobile under such control as will enable him to avoid a collision with another vehicle driven with care and caution as a reasonably prudent person would do under similar conditions ’ ’.

We have examined the record and we cannot say that the giving of the instruction complained of was either erroneous in the light of the plaintiffs’ evidence or that it prejudiced the defendant’s rights in any way. This court has heretofore held that in the absence of any showing of prejudice to the appellant the giving of such instruction, if error, does not require a reversal of the judgment. (Paulsen v. McDuffie, 4 Cal. (2d) 111 [47 Pac. (2d) 709]; Tuttle v.

Crawford, 8 Cal. (2d) 126 [63 Pac. (2d) 1128].) Likewise, we find that no prejudicial error was committed in the giving of other instructions complained of by the defendant or in the refusal to give certain requested instructions. All subjects were fairly and fully covered by the court in its charge to the jury. Mere matters of phraseology objected to by the defendant are found to be inconsequential and not of sufficient moment to require specific mention. Nor do we find that any prejudice appears to have been suffered by the defendant by any of the rulings of the court which it designates as erroneous.

The trial was full and fair, and the damages do not appear to be excessive. We conclude that no point made on this appeal would justify a reversal of the judgments. Each of the judgments is, accordingly, affirmed. Curtis, J., Langdon, J., and Waste, C. J., concurred.