(182 P.) bona fide attempt to probate a purported la- [tomobiles so situated to stop, held a question ter will should not be enforced. It is the for the jury. TOMOBILE ACCIDENTS - EVIDENCE - SUFFI- Where a pedestrian while attempting to policy of the law to encourage the presenta- 5. MUNICIPAL CORPORATIONS ~706(5)—Aution for probate of wills of decedents in order to make the more certain that those really entitled to their bounty shall enjoy it. To place upon one under the moral, if not the legal, obligation of probating the decedent's will the burden of gambling on his ability to do so successfully, no matter how sincere he may be, would be directly opposed to such policy. These reasons are very different from those applicable to direct attacks upon a will, and the question is not precluded by Estate of Hite, supra. It is unnecessary to Motor Vehicle Act of 1913, requiring autoput this decision upon that ground, and we mobile drivers when passing street cars in a do not do so. We mention the point, how-city to operate the automobile with due care ever, to avoid any inference that our dis- and caution to prevent injury to those boarding cussion of the case solely as one of the con- or alighting from the car, and a city ordinance struction of the will means that this ques- requiring an automobile driver to stop 10 feet tion of public policy is not present in it. It behind a car standing still to allow passengers to board or alight, are not inconsistent. is present, but it is not necessary to decide it. Order affirmed We concur: SHAW, J.; LAWLOR, J. (180 Cal. 550) MANN v. SCOTT et al. (L. A. 4596.) (Supreme Court of California. June 13, 1919.) 1. MUNICIPAL CORPORATIONS 706(7)—AUTOMOBILE ACCIDENTS-CONTRIBUTORY NEGLIGENCE-JURY QUESTION. Where a pedestrian was struck by defendant's automobile while attempting to board a street car, evidence held not to show, as a matter of law, that plaintiff was negligent. 2. MUNICIPAL CORPORATIONS 705(10) CROSSING STREETS-DUTY TO STOP, LOOK AND LISTEN. A pedestrian about to cross a city street is under no positive duty to stop, look and listen. 3. MUNICIPAL CORPORATIONS ~~705(10)-- AUTOMOBILE ACCIDENTS Where a pedestrian about to board a street car is struck by an automobile, the question of negligence, under the usual rule of ordinary care devolving upon pedestrians, must be examined in the light of all the attending circumstances, including the knowledge of the exist ence of a statute or an ordinance describing regulations for the observance of automobile drivers. 4. MUNICIPAL CORPORATIONS - 7. MUNICIPAL CORPORATIONS 592(2)-Or STREET CAR ACCIDENTS-INSTRUCTIONS. In an action for personal injury sustained by being struck by an automobile while at tempting to board a street car, it was not error to instruct the jury in the language of Motor Vehicle Act 1913, regulating the care to be observed by automobile drivers while passing a street car, and also in the language of a city ordinance, requiring an automobile driver to stop 10 feet behind the car discharging or receiving passengers; such enactments not being in conflict. 9. MUNICIPAL CORPORATIONS 706(8)—AuTOMOBILE ACCIDENTS-INSTRUCTIONS. In an action for personal injury sustained by being struck by defendant's automobile while attempting to board a street car, it was not error to instruct that, if defendant violated a city ordinance, and "by reason thereof plaintiff sustained injuries, then you should find for plaintiff, if you further find" that plaintiff was in the exercise of reasonable care, was not erroneous in that the jury should have been instructed that the violation of the ordinance was "negligence." In Bank. Appeal from Superior Court, Los Angeles County; Grant Jackson, Judge. Action by Merta Mann against De Witt Scott, doing business under the fictitious name and style of Scotty's Personal Auto For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Service and another. Judgment for plain- [ examination which way she was looking as tiff, and, from the denial of a new trial, de- she stepped from the curb, plaintiff replied that fendants appeal. Affirmed. she did not know, but that she supposed she was looking directly toward the street car. Rufus V. Bowden and Duke Stone, both which had stopped just as she mailed the letter. of Los Angeles, for appellants. She intended boarding the car at its front-end Shepard, Olm & Swenson, of Los Angeles, entrance. When she left the sidewalk she did for respondent. LENNON, J. The facts upon which this appeal is based are stated in the opinion of Mr. Justice Finlayson, presiding in the District Court of Appeal, Second Appellate District, Division 2. We adopt that opinion in part as follows: "While crossing from the sidewalk to where was standing a street car that she intended taking, plaintiff was struck by an automobile owned by defendant Scott and driven by his chauffeur, defendant Layman. She brought the action to recover damages for the personal injuries thus occasioned. Verdict and judgment were for plaintiff. From the judgment and order denying their motion for a new trial defendants appeal. The injury occurred shortly after 9 o clock in the evening, in the city of Los Angeles, on Main street, which runs approximately north and south, and at the intersection of that thoroughfare with Republic street. Appellants' main contentions are: (1) That the court erred in not granting their motion for a nonsuit, in that, so it is claimed, respondent's case shows contributory negligence; (2) that, for the same reason, the evidence is insufficient to sustain the verdict; and (3) that the court committed prejudicial error in giving certain instructions to the jury. not again look to see if any automobile was coming. After taking two or three steps from the curb, and when about four feet from the sidewalk, she was struck down and injured by appellants' automobile, which, coming toward her from the north, was traveling abreast of the street car, and between it and the sidewalk. The place where the street car had stopped was the usual stopping place. As the motorman brought his car to a stop to permit the passengers to enter, he saw the headlight of appellant's automobile flash upon respondent. This caused him to look back. As he did so he saw appellants' automobile to his right, opposite about the middle of his car, still traveling, and going at a speed of between 8 and 12 miles an hour. When the automobile came to a stop its rear wheel was about directly opposite the front entrance of the street car. The street car had come to a stop just as the automobile reached the rear end of the car. For a short distance north of the intersection of Main and Republic streets, the street car was traveling ahead of appellants' automobile. Defendant Layman, who was driving the automobile, testifies that, before reaching the intersection, the street car was ahead of him; that there was a machine or two parked along the sidewalk on Main street; that there was no room to pass between the machines and the car; that he wanted the street car, which was traveling very slowly, to run on; and that he ran on slowly behind the car until he had passed the machines parked along the sidewalk, when he swung his automobile beside the street car and ran along beside it at about 12 miles an hour. It will thus be seen that the jury may well have been justified in finding that the driver of the automobile, while traveling in the same direction as the street car, saw the car slow down to permit the entrance of passengers, and, instead of bringing his automobile to a stop behind the car when it stopped, continued on his course, intending to pass the car as it stood waiting for passengers, as he doubtless would have done had he not collided with the respondent. [] "1. We cannot say that, as a matter of law, respondent was guilty of contributory negligence that is, that 'all the facts plainly and inevitably point to such negligence, leaving no room for argument or doubt.' Bailey v. Market Street Ry. Co., 110 Cal. 328, 42 Pac. 914. As is usual in such cases, there is a sharp conflict between the several witnesses. There was evidence, however, to support the following facts: Immediately prior to the accident respondent had stopped to mail a letter in a mail box on the west side of Main street, at the northwest corner of the intersection of that thoroughfare with Republic street. It was her purpose to board a south-bound Main street car, which she saw coming toward her from [2-4] "Appellants contend that, before leav the north. The automobile and the street car ing the sidewalk to board the street car as it were both traveling on Main street in the same stood in Main street opposite her, respondent, direction. As respondent stepped up to the as a matter of law, was in duty bound to look box to drop her letter she noticed the street toward the north to see if any automobile was car stop. It had stopped on the near side of approaching, and, further, that, had she so lookthe crossing, upon a signal given by two per- ed, she necessarily must have seen appellants' sons who wished to board the car. Just before on-coming automobile, and that, therefore, her dropping the letter respondent glanced up, look-testimony that she did look and saw no aued toward the north, saw the street car coming, tomobile is not enough to support a verdict and started for it. She testified that, as she in her favor-citing in support of this contention glanced up and saw the car approaching, there Chrissinger v. Southern Pacific Railway Co., was nothing else in sight; that, as she stepped 169 Cal. 619, 149 Pac. 175, an action against from the sidewalk, there was no automobile a steam railway company. * * There is or other vehicle in sight; that as she stepped no positive duty to stop, look, and listen when off the sidewalk she looked to see if the street a pedestrian is about to cross a city street. was clear to see if anything was coming-and Blackwell v. Renwick, 21 Cal. App. then started for the street car, which, in the 131, 131 Pac. 94; Clark v. Bennett, meantime, had stopped on the near side of the 123 Cal. 275, 55 l'ac. 908. Compare also Scott crossing, directly opposite the spot where she v. Traction Co., 152 Cal. 604, 610, 93 Pac. 677. stepped from the sidewalk. Asked on cross- The question of negligence under the usual (182 P.) . further find that at that time the plaintiff was in the exercise of reasonable care with regard to her own safety.' It is not disputed that, at the time of the accident, there was an ordinance of the city of Los Angeles prescribing regulations substantially as set forth in the instruction last quoted. It is, however, contended: (1) That the State Motor Vehicle Act is the controlling law upon the subject, and that rule of ordinary care that devolves upon foot [juries, then you should find for plaintiff—if you travelers, must be examined in the light of all the attendant circumstances, one of which may be knowledge of the existence of a statute or an ordinance prescribing certain fixed regulations for observance by automobile drivers. And it may be that if the jurors in this case rejected, as improbable, respondent's testimony that she looked and saw no approaching automobile, they, nevertheless, concluded-as well they might-that if she did not see the automobile it was error to give an instruction embodying before leaving the sidewalk, she reasoned that the regulatory provisions of the city ordinance; its driver would comply with the city ordinance, (2) that an instruction on both the state law and referred to in the court's instructions, requir- city ordinance, where they are distinct and ining an automobile traveling behind a street car dependent declarations of law, is error; and to stop 10 feet in the rear of the car if it stops (3) that, instead of instructing that a violation to let off or take on passengers, until the pas- of the ordinance, when the proximate cause of sengers have safely alighted from or boarded the injury, is negligence, the court erroneously the car. Whether, if she saw the automobile, instructed the jury, in absolute terms, that, if respondent would have been warranted in going appellants violated the ordinance in the partoward the street car without further watching | ticular designated, and if, by reason thereof, the automobile approach, relying upon a com- plaintiff sustained injuries, 'then you should find pliance by the appellants with the requirements for plaintiff.'" of the ordinance, was a question upon which men's minds might well differ, and hence it was properly a case for the jury. * [5] 2. Neither can we hold that there was not sufficient evidence to justify the jury in [6, 7] Upon a careful reconsideration of the appellants' contention that the State Motor Vehicle Act of 1913 is the control finding that appellants were guilty of negli-ling law upon the subject, and that it was gence. The evidence was such that this question was wholly within the province of the jury. [Scott v. Traction Co., supra.] "3. We see no reason for reversing the judg ment on account of any alleged prejudicial error in the matter of instructions. The court substantially in the language of the Motor Vehicle Act [of 1913 (St. 1913, p. 639)] instructed the jury to the effect that automobiles approaching an intersecting street shall be under the control of the operator; that it shall be the duty of the operator, when overtaking another vehicle, to sound an audible and suitable signal before passing; and that the driver of an automobile, when passing street cars operated in the city, shall operate his automobile 'with due care and caution, so that the safety of passengers alighting from or boarding such street car shall be protected, and for that purpose said vehicle shall be brought to a full stop, if reasonably necessary to obtain his object.' The court, substantially in the language of the ordinance above referred to, likewise instructed the jury as follows: 'If you believe that the defendant Layman was in the employ of the defendant Scott, and was driving his automobile in a southerly direction on Main street at or near the intersection of Republic strect * * and that * a street car was proceeding in a southerly direction on said Main street; that the said street for the error to give an instruction embodying the regulatory provisions of the city ordinance, we are constrained to confirm the opinion of the District Court of Appeal that the municipal ordinance in the respect noted was not inconsistent with the state law, but was valid and operative in the city of Los Angeles at the time of the plaintiff's injury. And this, we think, is so regardless of the question of whether or not the regulation of the traffic upon the streets of a city is a "municipal affair." Conceding that if there were in fact a conflict between the ordinance and the Motor Vehicle Act, the state law would prevail, still we find no conflict or inconsistency between the two enactments. The state law requires that a motor vehicle be operated with due care and caution when it overtakes a street car which is stopping on a city street to receive or discharge passengers, and further provides that the vehicle shall be brought to a full stop if reasonably necessary for the safety of such passengers. The municipal ordinance requires that the vehicle shall in all cases be stopped at a distance of 10 feet in the rear of the stopping street car. ordinance certainly does not attempt to make lawful the performance of any act forbidden by the state law. It follows that a conflict, if any, can exist only upon the theory that the ordinance prohibits that which is affirmatively authorized by the Motor Vehicle Act. In short, the appellants The car had stopped purpose of permitting passengers to alight therefrom, or to board the same; and that the defendant Layman violated the ordinance of the city of Los Angeles prescribing and directing that the driver of an automobile must stop the same at least 10 feet in the rear of such are placed under the necessity of contenduntil such passengers, or ing that that act affirmatively authorizes have * street car $ * * intended passengers, said street car, # * * * boarded and that the defend- motor vehicles to pass a stopping street car ant Layman failed and neglected to so stop in a city whenever the apparent risk involvsaid automobile, but proceeded to passed in so doing would not deter an ordinarithe street car in violation of said ordinance, and ly prudent and careful driver. We do not that by reason thereof plaintiff sustained in- so construe the statute. Where the Legis lature has assumed to regulate a given rules applicable in all of the cities of the course of conduct by prohibitory enactments, state, it has thereby impliedly prohibited the a municipality with subordinate power to enactment of additional local regulations by act in the matter may make such new and municipalities in keeping with the purpose additional regulations in aid and further- of the general law. The question whether ance of the purpose of the general law as the Legislature has undertaken to occupy may seem fit and appropriate to the necessi- exclusively a given field of legislation is, ties of the particular locality, and which we think, to be determined in every case are not in themselves unreasonable. Mr. upon an analysis of the statute and of the Justice Henshaw stated in the case of In re facts and circumstances upon which it was Hoffman, 155 Cal. 114, 118, 99 Pac. 517, 519 intended to operate. Such was the analysis (132 Am. St. Rep. 75), that the correctness made in the case of In re Hoffman, supra. of this principle cannot be doubted. He con- The opinion of this court in Ex parte Hong tinues: Shen, 98 Cal. 681, 684, 33 Pac. 799, 800, was based upon the same process of reasoning. There it was said: "Our Constitution provides that 'any county, city, town, or township, may make and enforce within its limits all such local, police, sanitary, and other regulations as are not in conflict with general laws.' Article 11, § 11. It is claimed by the petitioner that, inasmuch as the Legislature has regulated the sale of certain poisons, including opium, by the acts above referred to, it is not within the power of the board of supervisors of the city and county of San Francisco to make another regulation or to prohibit the sale of opium; that an ordinance is in conflict with the general laws when it makes another and different regulation for the sale of an article of commerce than that provided by a statute of the state. "If the state should pass a law declaring it unlawful to erect a chimney of a height exceeding 150 feet, would any one seriously contend that a city of the state within the earthquake zone might not by ordinance, in the clear exercise of police power, for the benefit of its citizens, still further restrict the height of chimneys? Such, in principle, is the present case. The Legislature has in effect declared that it shall be unlawful to sell milk containing less than 11.5 per centum solids, 3 per centum of which solids shall be milk fat. An ordinance of a municipality requiring of the milk vended therein a larger percentage of solids, if not in its exactions unreasonable, does no violence to the law of the state. The state's declaration merely is that milk shall not be sold containing less than 11.5 per centum of solids, 3 per centum of which shall be milk fat. If the city of "The soundness of this contention we cannot Los Angeles had provided that milk might be admit. They may be different regulations withvended which contained less per centum of out a conflict. * So, in the action at milk fats than that exacted by the state law, bar, the Legislature has simply prohibited the there would be presented a plain case of con- sale of opium, and certain other poisons, unless flict. The municipality would be endeavoring a certain record is kept. It has not directly to legalize that which the state had declared to authorized the sale of opium without the prebe unlawful. But what the city has in fact scription of a physician; it has not legislated done has been to impose not fewer, but addi- upon that subject at all, except in providing tional, qualifications upon the milk which may that where a physician's prescription is prebe vended to its consumers. The state in its sented no other record need be kept. The city laws deals with all of its territory and all of has gone further than the statute, and providits people. The exactions which it prescribes ed that no opium shall be sold without a preoperate (except in municipal affairs), upon scription. While the regulation is different from the people of the state, urban and rural, but it that of the state there is no conflict, and theremay often, and does often, happen that the re-fore it is not in violation of the provision of quirements which the state sees fit to impose the Constitution quoted above." may not be adequate to meet the demands of densely populated municipalities; so that it becomes proper and even necessary for municipalities to add to state regulations provisions adapted to their special requirements. Such is the nature of the legislation here questioned." It is true that in the case of In re Hoffman, supra, the state statute therein considered was general in its terms, and made no distinction between regulations applicable in urban and those applicable in rural communities, whereas the Motor Vehicle Act makes express provision that certain rules shall apply in business districts, that other rules shall apply in territory which is close ly built up, and that still different rules shall apply in country districts. But it does not follow that, because the Legislature has seen fit to distinguish in the operation of the act between urban and rural communities and to make certain general Upon a careful analysis of the Motor Vehicle Act of 1913 and of its purpose viewed in the light of the traffic conditions upon which it was intended to operate, we are of the opinion that the reasoning of the court in the case last quoted is decisive of the question now presented. In other words, we believe that by extending the operation of the act in terms to the traffic upon city streets the Legislature did no more than to prescribe obviously necessary safeguards for travel upon such streets viewed as part of the public highways of the state in which all of the people of the state are essentially interested, and that it did not thereby intend to prohibit the enactment of such new and additional police regulations in furtherance of the purpose of the act as might appear reasonable and proper in a given locality. It is true that the Motor Vehicle (182 P.) lation of the ordinance. It was not necessary Act of 1915 expressly limited the scope of [Injuries.' By this language the jurors were such police regulations. Stats. 1915, c. 188, told, in effect, that they could find for respond§ 22d. It may perhaps be open to question ent, she being free from contributory negligence, whether the ordinance here in controversy if her injuries were caused by appellants' viofalls within the prohibition of that act, but for the court to add that they could find for it is sufficient for the purpose of this case respondent if, and only if, appellants' acts were to say that the Motor Vehicle Act as in the proximate' cause of her injuries; for, in force at the time of the plaintiff's injury other instructions given by it, the court fully did not contain a clause prescribing limita- instructed the jury that, to find a verdict for tions upon the local regulation of traffic. plaintiff, they must not only find that the deMoreover, the very fact that subdivision fendants were negligent, but also that such "d" was added to section 22 of the Motor negligence was the proximate cause of the inVehicle Act in 1915 shows, we think, that jury to the plaintiff,' and likewise instructed the construction which we have placed upon imate cause.' The instruction complained of, the jury as to the meaning of the phrase 'proxthe act as it stood at the time of the plain- which is one of a series, cannot fairly be torn tiff's injury accords with the legislative in- from its context for criticism. The instructions, tent. as a whole, show that the jurors were fully ad spondent's injuries resulted from appellants' conduct as the proximate cause thereof." The remaining contentions of the appel-vised as to the necessity for finding that relants are fully and correctly answered in the remaining portion of the opinion of Mr. Justice Finlayson, which we adopt as follows: [8] "Nor was it prejudicial error to instruct the jury in the language of both the state law and the ordinance. Upon this point appellants cite Sheppard v. Transit Co., 189 Mo. 362 [87 S. W. 1007], where the court enunciated the well-recognized doctrine that where two inconsistent instructions are given, one declaring the law correctly and the other erroneously, the one that declares the law correctly does not cure the error of the other. But here there is no inconsistency between the specific requirements of the ordinance and the more general requirement of the state law that the driver of an automobile passing a street car 'shall operate the vehicle with due care and caution,' and shall bring it to 'a full stop if reasonably necessary' to the safety of passengers alighting from or boarding such street car. The ordinance has simply declared what, under certain circumstances, shall be necessary to constitute 'due care and caution' for the safety of such passengers. Furthermore, if as we hold, the * operative ordinance is The judgment appealed from is affirmed. We concur: ANGELLOTTI, C. J.; SHAW, J.; WILBUR, J.; OLNEY, J.; LAWLOR, J.; MELVIN, J. (180 Cal. 570) In re MOORE'S ESTATE. MOORE et al. v. McKEVITT. (S. F. 8654.) (Supreme Court of California. June 16, 1919. Rehearing Denied July 16, 1919.) 1. WILLS 260-"CONTEST OF WILL"-OFFER OF LATER WILL. Code Civ. Proc. §§ 1327, 1333, as to conclusiveness of will not contested within a year after probate, does not bar the offering, more than a year after such probate, of another document as a subsequent and genuine last will; such offer not being a contest of the will adappellantsmitted to probate, in view of section 1299, providing that a will may be offered "at any time" after testator's death, and section 1423, as to procedure when a later will is offered. were not injured merely because, in another part of the instructions, the court gave certain of the provisions of the state law that prescribe for appellants less onerous requirements. [9] "We perceive no prejudicial error in the instruction to the effect that, if the jury believed appellants violated the ordinance, 'and that, by reason thereof, plaintiff sustained injuries, then you should find for the plaintiff, if you further find that at that time the plaintiff was in the exercise of reasonable care with regard to her own safety.' Assuming that it would have been more consonant with time-honored usage to have told the jury that a violation of the ordinance is 'negligence,' for which, if such violation was the proximate cause of her injuries, respondent could recover, nevertheless, in the instruction as given the court not only told the jury that respondent herself must be free from contributory negligence, but that, to entitle her to a verdict, they must find, not only that appellants violated the ordinance, but that 'by reason thereof'-that is, by reason of their violation of the ordinance-'plaintiff sustained 2. WITNESSES 258-TESTIFYING FROM PAPERS IN LEGAL PROCEEDINGS. In view of Code Civ. Proc. § 2047, allowing testimony from a writing, although witness retains no recollection of facts, on the issue of testator's mental capacity, it was error to refuse to allow testator's former attorney, testifying from a document in the form of a bill of exceptions, prepared by such attorney while its contents were fresh in his memory, using the court reporter's notes to check it, which purported to contain testator's testimony in an action, to state what testator testified to while on the witness stand in such action. 3. WITNESSES 258 WRITING "MAY." TESTIFYING FROM Code Civ. Proc. § 2047, providing that a witness "may" testify from a writing, though he retain no recollection of the particular facts, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |