# Butigan v. Yellow Cab Co.

> California Supreme Court · January 28, 1958 · 49 Cal. 2d 652

URL: https://www.frixlaw.com/law-library/cases/9563694

## Case

- **Full name:** GEORGE BUTIGAN Et Al., Appellants, v. YELLOW CAB COMPANY (A Corporation) Et Al., Respondents
- **Court:** California Supreme Court
- **Decided:** January 28, 1958
- **Citations:** 49 Cal. 2d 652; 320 P.2d 500
- **Precedential status:** Published
- **Opinion:** Dissent by Spence
- **Judges:** Gibson, Schauer, Spence, Shenk, Carter, Traynor, McComb
- **Cited by:** 179 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Declined to follow by Rodoni v. Hoskin, 138 Mont. 164 (1960).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9563694

## How later opinions describe it (automated extraction)

- noting that “[i]t is particularly significant that no decision in this state ... has held that refusal to give the instruction was reversible error” and noting cases where refusal to give instruction was not error because “the jury was fully instructed on the general rules of …

## Opinion text

SPENCE, J.
I dissent.
The majority reverses the judgment in this case solely because of its determination that it was prejudicial error to give any instruction on “unavoidable or inevitable” accident. In arriving at this conclusion, the majority expressly overrules Parker v. Womack, 37 Cal.2d 116 [ 230 P.2d 823 ], and impliedly overrules numerous other cases which declare that such an instruction correctly states the law.
An instruction on this subject has been given for many years by the trial judges of this state as a so-called stock instruction in negligence cases. Instructions similar to the challenged instruction have been consistently approved by the appellate courts and, as indicated by Mr. Justice Schauer, the concept of “unavoidable accident” has been given express legislative recognition in section 602 of the Vehicle Code. I therefore cannot join the majority in declaring that “the use of an unavoidable accident instruction should be disapproved” or in determining that the giving of the challenged instruction constituted error in this case.
I find no error in the record other than certain invited error, concerning which the majority properly holds that plaintiff “ is in no position to complain.’’ I would therefore affirm the judgment.
The petitions of respondents Yellow Cab Co. and Fred Wurm for a rehearing were denied February 26, 1958. Schauer, J., Spence, J., and McComb, J., were of the opinion that the petitions should be granted.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9563694. Public record. Not legal advice.