Borg v. McDonnell

WOOD (Fred B.), J.

Plaintiff, walking along the Bay-shore Highway in a northerly direction, was hit by defend*261ant’s automobile which was traveling in the same direction. Upon this appeal from an adverse judgment plaintiff assigns prejudicial error in the giving and refusing of instructions. Our examination of the record convinces us that the giving of an instruction on unavoidable accident* was prejudicially erroneous, under the holding in Butigan v. Yellow Cab Co., 49 Cal.2d 652 [320 P.2d 500, 65 A.L.R.2d 1], a decision filed on the next to the last day of the trial herein.

The Facts

The section…