 lack of negligence on the part of respondents. It would mean, on the other hand, that the evidence not only indicates but actually establishes negligence on the part of respondent Robert Lowthian. It would mean that at the close of the evidence appellants were each entitled to a directed verdict or, after verdict by the jury to the contrary, they were entitled to judgment in their favor, notwithstanding the verdict.
A judgment founded upon the verdict of the jury will not be reversed on the ground of insufficiency of the evidence unless it can be held as a matter of law that, aided by every favorable inference, presumption and intendment, the evidence is patently inadequate to support the verdict. Huston v. Schohr, 63 Cal.App.2d 267, 146 P.2d 730; Freeman v. Nickerson, 77 Cal.App.2d 40, 174 P.2d 688; De Rosier v. Vierra, 109 Cal.App.2d 291, 240 P.2d 660; Dodds v. Stellar, 77 Cal.App.2d 411, 175 P.2d 607. If this point is now sound it should have been raised by a motion for a directed verdict or a motion for judgment notwithstanding the verdict. No such motions were made.
No useful purpose would be served by reviewing the evidence with particularity. Suffice it to say that we have read the record. In reviewing that record we find no support for appellants' contention that respondents' version of the collision is physically impossible. There is in the record ample evidence of a credible nature to support the verdicts of the jury.
This very question, that of violation of a provision of the Vehicle Code, was involved in Satterlee v. Orange Glenn School Dist., 29 Cal.2d 581, 177 P.2d 279. As the issue was there stated in the opinion, 29 Cal.2d at page 583, 177 P.2d at page 280: ‘The principal points relied upon as grounds for a reversal of the judgment * * * concern two jury instructions stating the legal effect of violation of the Vehicle Code in fixing liability for the accident.’ The applicable rule is stated, 29 Cal.2d on page 589, 177 P.2d on page 283, as follows: “* * * An act which is performed in violation of an ordinance or statute is presumptively an act of negligence, but the presumption is not conclusive and may be rebutted by showing that the act was justifiable or excusable under the circumstances. Until so rebutted, it is conclusive. [Citing cases.]' However, the fact which will excuse the violation of a statute has been defined by the court as one resulting ‘from causes or things beyond the control of the person charged with the violation.” Citing Gallichotte v. California Mutual etc. Ass'n, 4 Cal.App.2d 503, at page 506, 41 P.2d 349, at page 351, and other cases. Whether the violation resulted from causes or things beyond the control of the person charged with the violation, and therefore justifiable or excusable, is a question of fact for the jury, excepting in a case where the court would be impelled to say that from the facts reasonable men could draw but one inference, and that an inference pointing unerringly to the negligence of the violator of the statute. Hart v. Briskman, 110 Cal.App.2d 194, 242 P.2d 341; Scalf v. Eicher, 11 Cal.App.2d 44, 53 P.2d 368; Satterlee v. Orange Glenn School Dist., supra, 29 Cal.2d 581, 177 P.2d 279.
It seems then that the rule is now settled under which negligence imputed by the violation of a statutory provision will not be held actionable and that justification or excuse can result only from causes or things beyond the control of the person charged with the violation. The rule is not thus stated in Tossman v. Newman, 37 Cal.2d 522, on page 525, 233 P.2d 1, for there it is stated merely that the presumption of negligence can be rebutted by evidence of justification or excuse. But following this statement of the rule, Ornales v. Wigger, supra, 35 Cal.2d 474, 218 P.2d 531, is cited in support, which certainly indicates no disapproval of the qualifying language, to wit: the justification or excuse must result from causes or things beyond the control of the person charged with the violation.
It is apparent that the instruction appearing above and of which appellants complain, left out that part of the rule just quoted. The question now is what is the legal effect of this omission under the circumstance that, as submitted by appellants, the instruction fell even shorter of stating the full rule. Appellants in their supplemental brief concede that an excuse instruction was justified by the evidence. This being so, it would have been error to have given the instruction as submitted by appellants without modification. Hart v. Briskman, supra, 110 Cal.App.2d 194, 242 P.2d 341. Appellants submitted an instruction in which the rule was fully stated, but in it were also incorporated other features which rendered it objectionable, and it was not given.
We have then the situation where appellants submitted an instruction which correctly stated the law as far as it went but which here would have been improper without an excuse provision. The court amplified it by adding such a provision in general terms and, as modified, it still stated the law correctly as far as it went. Appellants now complain and charge the court with error in stopping where it did and in not qualifying the general excuse provision as set forth in the modification. Appellants do not claim that the words added by the court change their proffered instruction from a correct statement to a misstatement of the law. Their position apparently is that so long as the court undertook to modify the instruction at all, it was duty bound to leave nothing concerning its application unsaid.
Granting that the court might well have made its modification more specific, does this situation not fall squarely within the rule quoted above from Baldridge v. Cunningham, 31 Cal.App.2d 128, 87 P.2d 369, thus making it the duty of appellants to propose a further instruction if desired and ‘request the court to give it’? As stated in Ornales v. Wigger, supra, 35 Cal.2d 474, at page 479, 218 P.2d 531, at page 534: ‘The trial court need not of its own motion give special instructions in the absence of a request therefor by counsel. [Citing cases.]’ True, it may be said here that such an instruction was requested. But the one proposed, which did correctly state the full rule, was, as stated above, confusing and objectionable for other reasons under the circumstances of this case, and the court was under no duty to change it. Tossman v. Newman, 37 Cal.2d 522, 233 P.2d 1. A court is under no duty and indeed should not give an instruction which, although technically a correct statement of the law, is so worded as to be confusing or misleading, or which by construction or implication may appear to indicate that a given rule of law applies only to one of the parties when it in fact applies equally to both.
Appellants here invited error by submitting two instructions on the law pertaining to the violation of a statute, neither of which was a proper instruction in view of the evidence. They cannot complain then because a modification of one of them by the trial court was not in as much detail or as specific as appellants might have desired but where, as modified, it did not amount to a misstatement of the law.
The appeals from the order denying the motion for a new trial are dismissed; the judgments are affirmed.
​Kaven Benoit is a professional Motocross rider from Canada. He has raced the Canadian Motocross Nationals his entire career and has won two championships in the MX2 class.
Royal Distributing KTM's Kaven Benoit had a stellar year in Canada grabbing his first Canadian MX title at Walton Raceway in Walton, Ontario. Kaven rode both 2 and 4 stroke machines en route to the MX2 title finishing out the season aboard a KTM 250SX two stroke. SUBSCRIBE NOW! http://www.youtub...<reponame>TomiScatto/hcxtools<filename>include/hcxhashtool.h
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