Butigan v. Yellow Cab Co.

SCHAUER, J.,

Dissenting.—Since at least as early as the year 1897 it has been consistently held that where defendants deny negligence on their part an instruction may properly *662be given explaining to the jury “the well-settled rule of law that for inevitable accident occurring when one with due care is engaged in a lawful business, damages may not be recovered.” (Niosi v. Empire Steam Laundry (1897), 117 Cal. 257, 259, 261 [49 P. 185] [intersection accident] ; see also 35 Cal.Jur.2d 726, § 206, and cases there cited.) By the majority opinion in the present case we are now told that “In reality,…