(191 P.)

Where defendant automobilist unlawfully cut a corner at a street intersection and bore down on plaintiff automobilist from the wrong side of the street, plaintiff was not contributorily negligent in turning his machine to the left in an effort to avoid the threatened collision, in view of the sudden emergency.

Driver 3. Municipal corporations 706 (7) of automobile held not guilty of contributory negligence as matter of law under crossing speed regulation.

understood that the agent who first produc- ing held to strict accountability as to whether ed the money would receive the commission. the course chosen is the most judicious or not. It seems to us that this was a controlling feature of the case. The defendants were 2. Municipal corporations 705(10)-Plaintiff automobilist not contributorily negligent anxious for the money. They had been in in swerving to wrong side of street to avoid the market for this loan a number of collision. months; they had to meet an outstanding mortgage on their property in the very near future; they had placed the procuring of the loan with various agents; and it was understood with plaintiff that the first agent who came with the money would receive the commission. These other agents produced the customer and the money. We do not think, under the circumstances, that it was incumbent upon defendants to trace back the negotiations of the different agents to ascertain who saw the customer first. The controlling Motor Vehicle Act, § 22, prohibiting greatfact was who saw him last and brought him er speed than 10 miles an hour at street interto a favorable decision. Whatever may be sections where the view is obstructed, is comsaid of the conduct of the lender in leading plied with if speed is so reduced in the terthe plaintiff to believe that if he made the ritory common to both streets at or within the loan he would close it through plaintiff, no lines of intersection, and one driving 15 miles bad faith is attributable to defendants, and an hour at a point 25 or 30 feet from the they are not responsible for any bad faith intersection could not be held guilty as a maton the part of the customer. They unite inter of law of contributory negligence therefor, denying that they even knew Hadley was stop completely within 15 to 30 feet. especially where at 15 miles an hour he could plaintiff's customer; but, accepting plaintiff's contention and the court's finding that the latter had disclosed Hadley's name, the last word they had received from plaintiff three days previous to the closing of the deal was that his customer had not then made up his mind, but had promised to let him know soon, and had not appeared, and up to the time that Pattee and Ross notified them they had the money in escrow no further word was had from plaintiff.

Under this condition of the law and the facts it becomes immaterial that the plaintiff may have notified defendants that he claimed the commission before the money had actually been paid out to the other agents. The decision of the case rests upon the conclusion that the evidence does not show that the plaintiff was the efficient agent in procuring the loan.

Judgment is reversed.

We concur: ANGELLOTTI, C. J.; WIL BUR, J.; LENNON, J.; SHAW, J.; LAWLOR, J.; OLNEY, J.

(182 Cal. 264)

MCPHEE v. LAVIN. (L. A. 5167.) (Supreme Court of California. June 25, 1920.) 1. Negligence 72-One confronted by emergency not held to strict accountability.

One suddenly confronted with an unexpected danger may use such means for avoiding the danger as would appeal to a person of ordinary prudence in a like situation, without be

4. Evidence

to

222 (2)-Defendant's declaration that he carried accident insurance admissible as admission.

In automobile collision case, it was proper admit in evidence, as part of a conversation had with defendant, defendant's declaration to plaintiff, immediately after the collision, that he carried accident insurance that would provide for plaintiff if he suffered injury; this tending to show an acknowledgment of responsibility by defendant for the accident.

5. Appeal and error 1060(1)-Trial 27 -Eliciting that defendant carried accident Insurance held error, but not prejudicial.

In automobile collision case, where upon questioning on behalf of defendant of a physician who had examined plaintiff, plaintiff's counsel asked if he made the examination at the instance of the Fidelity & Casualty Company, such line of examination was improper; but, the trial being before the court without a afterwards stricken out, it could be treated as jury, and the witness' affirmative reply being error without prejudice.

Appeal from Superior Court, Grange County; Z. B. West, Judge.

Action by George McPhee against J. D. Lavin. From a judgment for plaintiff, defendant appeals. Affirmed.

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

R. Y. Williams, A. W. Rutan, and Williams & Rutan, all of Santa Ana, for respondent.

SLOANE, J. This appeal is from a judgment for plaintiff for injuries caused by an automobile collision. The principal point presented is on the contention of appellant that the record discloses contributory negligence on the part of plaintiff.

R. P. Jennings, of Los Angeles (Frank B. I caused his said automobile to be driven and Belcher, of Los Angeles, of counsel), for ap- propelled, so that the same was unlawfully pellant. driven to the east side of the intersection of the prolongation of Claudina street in and upon said Center street, in the city of Anaheim. That by the action of said defendant a collision was imminent between the automobiles of plaintiff and defendant. that a collision was imminent between the said That plaintiff saw automobiles, and on account of the same caused his said automobile to veer in a southwesterly direction towards the left-hand side of Center street. That if defendant had kept upon the proper side of the street there would have been no accident. That the proximate cause of said accident was the failure of defendant to folof the street, and by his unlawfully driving his low the law in keeping on the right-hand side automobile to the east side of the intersection of the prolongation of Claudina street in and upon said Center street, and by causing his said automobile to be driven upon the northeastern portion of said intersection when he was going in a southeasterly direction. That the defendant did, when a collision was imminent, attempt to turn his automobile towards the right for the purpose of avoiding a collision with the mobile was not then and there being driven at plaintiff's automobile, but that plaintiff's autoa high or dangerous or unlawful rate of speed. That the plaintiff turned his automobile to the left without slackening the speed thereof, and that up to the time of so turning to the left plaintiff was at all times proceeding at a speed of 15 miles per hour, and that upon so turning to the left he increased the speed of his lision." "That the rate of speed that plainautomobile for the purpose of avoiding a coltiff was driving his automobile prior to and at the time of the accident did not contribute to or cause the said collision and accident, and that plaintiff was not guilty of contributory negligence in the speed, way, or manner in which he was driving his said automobile."

The parties, each driving an automobile, were approaching the crossing of intersecting streets in the city of Anaheim; the plaintiff going west on the north side of Center street and the defendant going south on the west side of Claudina street. The main facts in the case, as found by the trial court and supported by the undisputed weight of the evidence, show that the defendant, upon reaching the vicinity of the street intersection, instead of keeping to the right until he had passed the center of the intersection, as required by section 20 of the state Motor Vehicle Act, cut across the corner of the intersection to the east of the center of the street; that the plaintiff, who was approaching the intersection from the east, saw de fendant's machine coming toward him on the wrong side of the street, and in an attempt to avoid a collision turned to the left and increased his speed. The defendant also, seeing the imminence of a collision, turned his car to the right, and the machines came together near the southern line of the intersection, with resultant injuries to the plaintiff. Under this state of facts thus found there can be no question but that the defendant, by reason of his negligent and unlawful crossing on the wrong side of the street, was responsible for the accident, unless the contention of contributory negligence on the part of plaintiff can be maintained. Section 22 of the Motor Vehicle Act, then in force, already referred to, prohibits the driving of a motor or other vehicle on a public highway

[1, 2] It is appellant's contention that the specific finding of fact that at all the times mentioned the plaintiff was driving at a speed of 15 miles an hour negatives and supersedes the conclusion of the court that plaintiff was not driving at a dangerous or excessive rate of speed and that the rate at I which he was driving did not contribute to "At a greater rate of speed than ten miles the accident. If we may go behind the findan hour where the operator's or chauffeur's ings of the facts in this matter, it appears view of the road traffic is obstructed either up-from the evidence that the plaintiff's view on approaching an intersecting way, or in traversing a crossing or intersection of ways or in approaching or traversing a bridge, causeway or viaduct, or in going around corners or a curve in a street or highway." Stats. 1915, p. 409.

Contributory negligence was pleaded by an allegation of the answer averring that the plaintiff was driving at an excessive rate of speed in violation of the statute and that contributory negligence is imputed as a matter of law. On the issue thus raised the trial court found as follows:

"The court finds: That the defendant negli

around the corner in the direction from which the other vehicle was coming was obstructed by buildings; that the plaintiff was driving in the direction of this intersection at a rate of 14 or 15 miles an hour, and was at a point 25 or 30 feet from the intersection when the defendant came into his line of vision, crossing directly toward him on the wrong side of the street. The plaintiff in an effort to avoid the threatened collision speeded up his machine and turned at an angle to the left. That he cannot be held as a matter of law guilty of negligence in doing this is clear from the well-established rule

(191 P.)

We find no evidence of the presentation of any claim by plaintiff for compensation under the Workmen's Compensation Act (St. 1917, p. 831), or any assignment or subrogation of right, to support appellant's contention that plaintiff could not maintain this action in his own name and right.

expected danger may use such means, for intersection and allowed defendant the right avoiding the danger as would appeal to a of way to cross ahead of him. person of ordinary prudence in a like situation without being held to strict accountability as to whether the course chosen is the most judicious or not. Schneider v. Market St. Ry., 134 Cal. 482, 490, 66 Pac. 734. The defendant, by unlawfully cutting the corner and approaching the plaintiff from the wrong side of the street, is not in a posi- [4, 5] The errors of law assigned upon adtion to complain of the plaintiff's deviation from the rule of the road in an attempt to avoid a collision. If the plaintiff was guilty of negligence at all, it was by virtue of the fact that he was driving at the rate of 15 miles an hour at a point within 25 or 30 feet of an intersection where the view of the Intersecting street was obstructed. This situation involves the construction of the law in question as to the precise point on approaching such an intersection at which the driver must have reduced his rate of speed to 10 miles an hour.

mission of testimony over defendant's objections and motions to strike, so far as in any way suggestive of prejudice, arise upon the, admission in evidence, as part of a conversation had with defendant, of defendant's declaration to plaintiff, immediately after the collision that he carried accident insurance that would provide for plaintiff if he had suffered injury. As this was admitted as tending to show an acknowledgment of responsibility by defendant for the accident, we think it was proper evidence. Later in the trial, upon questioning on behalf of defendant of a physician who had made an examination of plaintiff to discover the extent of his injuries, plaintiff's counsel was permitted over defendant's objection to ask if he made the examination at the instance of the Fidelity & Casualty Company. This line of examination was objectionable and improper, but as the trial was before the court without a jury, and the affirmative answer of the witness was afterwards struck out by the court as incompetent, irrelevant, and immaterial, it may be treated as error

[6] Appellant complains of the judgment as excessive. It appears that $1,000 of the total amount of $1,241.50 included in the judgment was for personal injuries to the plaintiff. The evidence discloses that he was

[3] The purpose of this limitation of speed at intersections is obviously to avoid danger from the traffic crossing on the transverse street. Under the rules regulating such traffic, no danger arises until the passing vehicles reach the territory common to both streets at or within the lines of intersection. If then the speed has been reduced to 10 miles an hour at the point of intersection, the purpose of the limitation has been met. This is so held in Blackburn v. Marple, 184 Pac. 873, and we are in accord with the decision on that point. In this case the plain-without prejudice. tiff was driving at the rate of 15 miles an hour as he came toward this intersection, and was within the speed limit prescribed by law on that part of the street. He was still from 25 to 30 feet from the intersection when driven by the emergency that confront-pinned beneath the overturned automobile, ed him to change his course and accelerate his speed. Testimony was given in the case that his brakes were in good order and that he could, while moving at 15 miles an hour, bring his car to a complete stop within 15 or 30 feet. Under these conditions he could without difficulty, had he been permitted to pursue a straight and uninterrupted course, have slowed down to 10 miles an hour before reaching the intersection. It cannot then be held as a matter of law that he was guilty of negligence because of driving at the rate of 15 miles an hour at this point. If defendant had kept to the right side of the street until he had passed the center of the intersection, there is no reason to assume that the plaintiff would not have slowed down to the prescribed speed at the

subjected to a severe nervous shock, and received numerous contusions and bruises, which, while they only confined him to his bed nine days, were still evidenced by swellings and soreness four months later. It also appeared that he was suffering from soreness of the kidneys, which the physician attributes to the accident, and expresses doubt as to whether or not it may be permanent. Under these conditions we are not prepared to say that the damages allowed are so great as to justify disturbing the findings and judgment of the court.

The judgment is affirmed.

We concur: ANGELLOTTI, C. J.; WILBUR, J.; OLNEY, J.; SHAW, J.; LAWLOR, J.; LENNON, J.

(191 P.)

not allowable for the death of an employé | usual condition of the employment. The first by pneumonia contracted as the result of class is illustrated by lead poisoning and the unusual exposure and exhaustion in the second by pneumonia following an enforced exAs a rule such industrial or occupacourse of his employment. Other examples posure. along the same line are Industrial Accident tional diseases are not considered as injuries by Comm., etc., v. Brown, 92 Ohio, 309, 110 N. E. accident and in the absence of special statutory 744, L. R. A. 1916B, 1277; Adams v. Acme, On the other hand, it is generally accepted that provision compensation is not allowed therefor. etc., Co., 182 Mich. 157, 148 N. W. 485, L. R. a disease, which is not the ordinary result of an A. 1916A, 283, Ann. Cas. 1916D, 689; employé's work, reasonably to be anticipated as Richardson v. Greenburg, 188 App. Div. 248, a result of pursuing the same, but contracted 176 N. Y. Supp. 651; Liondale, etc., Works as a direct result of unusual circumstances v. Riker, 85 N. J. Law, 426, 89 Atl. 929. connected therewith, is to be considered an inOn the other hand, there are a large num-jury by accident, and comes within the proviber of decisions which adopt the broader sions of acts providing for compensation for meaning, and hold that compensation is personal injury so caused [citing a long list of authorities]." allowable for the injury or harm done by disease, although the disease is not contracted as the result of any violence whatever in the ordinary sense of that word.

Under the English Workmen's Compensation Act, compensation is, or was, allowable only for "personal injury by accident," a much more limited expression than that found in our constitutional provision, and one in which it might well be thought there was

In Hurle's Case, 217 Mass. 223, 104 N. E. 336, L.R. A. 1916A, 279, Ann. Cas. 1915C, 919, a workman employed to tend furnaces for making gas claimed compensation for the loss of his sight due to an acute attack of optic neuritis induced by poisonous gases from the furnaces to which his work constantly exposed him. The Massachusetts act allowed compensation for "personal injury" without requiring that it be by accident, and the ques

tion discussed by the court was as to whether the case was one of a "personal injury."

some implication of an injury by violent external means. Nevertheless, the House of Lords held in Brinton's v. Turvey, L. R. Ap. Cases (1905) 230, that compensation The discussion concludes thus: was allowable for the injury sustained by a workman from anthrax contracted by him in the handling of infected wool; there being no violence other than that bacteria from the wool found their way into his system. Similarly, it was held in Scott v. Pearson, L. R. 2 K. B. Div. (1916) 61, that compensation was allowable for cattle ringwormcisive if 'accident' had been the statutory word. contracted by an employé by coming in contact, not violent, with infected calves.

Along the same line, the House of Lords held in Glasgow Coal Co. v. Welsh, L. R. 2 Ap. Cases (1916) 1, that a miner was entitled to compensation for rheumatism contracted by him as a result of his being required to stand for a number of hours in cold water to bale out the mine pit.

The Indiana Workmen's Compensation Act, like the English Act, allows compensation for "personal injury or death by accident." But in United Paperboard Co. v. Lewis (Ind. App.) 117 N. E. 276, compensation was allowed to a workman for acute nephritis contracted by him through his being required to work for several hours in heated paper pulp. The following portion of the opinion is pertinent here, the italics being ours:

"The learned counsel for the insurer in his brief has made an exhaustive and ingenious analysis of the entire act touching the words 'injury' or 'injuries,' and has sought to demonstrate that it cannot apply to an injury such argument is not convincing. It might be de

as that sustained in the case at bar. But the

It is true that in interpreting a statute words should be construed in their ordinary sense. Injury, however, is usually employed as an inclusive word. The fact remains that the word 'injury,' and not 'accident,' was employed by the Legislature throughout this act. It would not be accurate, but lax, to treat the act as if it referred merely to accidents."

In State v. Trustees, 138 Wis. 133, 119 N. W. 806, 20 L. R. A. (N. S.) 1175, the widow and children of a policeman dying from pneumonia contracted by exposure in the course of his duty made application for a pension under a statute which provided for a pension to the dependents of a policeman "injured" in the performance of his duty. It was contended that by injury was not meant disease merely, and upon this point the court said (138 Wis. 135, 119 N. W. 807, 20 L. R. A. [N. S.] 1175):

"The courts have also differed as to whether a disease following an employment, should be "The word 'injury,' in ordinary modern usage, considered an injury by accident within the is one of very broad designation. In the strict meaning of such acts. In the various decisions sense of the law, especially the common law, its on this subject it is generally recognized that meaning corresponded with its etymology. It diseases are of two classes: First, the so- meant a wrongful invasion of legal rights, and called industrial or occupational diseases, which was not concerned with the hurt or damage reare the natural and reasonably to be expected sulting from such invasion. It is thus used in results of a workman following a certain oc- the familiar law phrase damnum absque injuria. cupation for a considerable period of time; sec- In common parlance, however, it is used broadly ond, diseases which are the result of some un-enough to cover both the damnum and the in