Zibbell v. Southern Pacific Co.

This is an action to recover damages for personal injuries. The defendants are the Southern Pacific Company and certain of its employees in the charge and operation of a switch engine with the ears thereto attached, by which the injuries were,inflicted. The verdict of the jury was in favor of the plaintiff against all of the defendants. The appeal from the judgment and from the order denying their motion for a new trial is taken by all of the defendants.

The question most earnestly and elaborately argued by all the parties to this appeal is whether or not the evidence establishes the contributory negligence of plaintiff. The determination of this question necessarily involves consideration of the facts in evidence. Before entering upon this consideration, however, the rules of law governing the doctrine of contributory negligence require brief—though very brief—statement. We say very brief, for, while the zeal, industry, and research of counsel have been tireless in the collocation and presentation of the cases bearing upon the question,—in a jurisdiction such as this, where the subject has by this court received frequent and elaborate exposition, little can be gained by going afield for authorities. And this is so because of the very nature of the question involved. Whether or not a plaintiff has been guilty of contributory negligence is similar to the question whether or not the evidence in a criminal case is sufficient to sustain a verdict of guilty. It is usually a question of fact. It is a question of law only when the evidence is of such a character that it will support no other legitimate inference than that ,in the one case the plaintiff was guilty of contributory negligence, in the other case that there was not sufficient evidence to sustain the verdict. But even in such cases, while the question is said, and properly said, to be one of law, it is never a question of pure law. The real decision of the question by the court is a decision of fact. When the evidence is such that the court is impelled to say that it is not in conflict on the facts, and that from those facts reasonable men can draw but one inference, and that an inference pointing unerringly to the negligence of the plaintiff contributing to his own injury, then, and only then, does the law step in and forbid plaintiff a recovery. It must follow, therefore, that cases from other jurisdictions can be of value to such a consideration only when one may be found which parallels in all

The law of this state is so well settled that it may be briefly summarized. Contributory negligence is a defense the burden of proving which rests upon defendant. (Schneider v. Market St. Ry. Co., 134 Cal. 482 , [ 66 Pac. 734 ] ; Hutson v. Southern California Ry. Co., 150 Cal. 701 , [ 89 Pac. 1093 ], Therefore in this state it is not incumbent upon the plaintiff—as it is in certain other jurisdictions—to establish affirmatively that he was free from negligence. It is incumbent upon the defendant to establish the existence of plaintiff’s contributing negligence. Again, the question whether or not a plaintiff has been guilty of contributory negligence is usually one of fact for the jury’s verdict.

“It is only where no fact is left in doubt, and no deduction or inference other than negligence can be drawn by the jury from,the evidence, that the court can say, as a matter of law, that contributory negligence is established. Even where the facts are undisputed, if reasonable minds might draw different conclusions upon the question of negligence, the question is one of fact for the jury.” (Johnson v. Southern Pacific R. R. Co., 154 Cal. 285 , [ 97 Pac. 520 ]; Seller v. Market St. Ry. Co., 139 Cal. 268 , [ 72 Pac. 1006 ]; Herbert v. Southern Pacific Co., 121 Cal. 227 , [ 53 Pac. 651 ].)

Finally, it is to be pointed out that, while in every case of a true conflict in evidence the determination and decision is for the jury, the conflict must, in fact, be real. This has application to that class of cases where the plaintiff, struck by an approaching train, testifies that he did look, and did listen, and did not see, and did not hear, the approaching train; yet all the other evidence, including the physical facts and conditions is such as necessarily forces the conclusion, either that he did not look and did not listen (or he must have seen or heard the train), or that, if he did look and did listen, he looked with unseeing eyes and listened with unhearing ears. This is in accord with the general rule touching the weight of evidence that neither court nor jury is

“It is a wild conceit that any court of justice is bound by the mere swearing; it is swearing credibly that is to conclude its judgment.”

In railroad damage cases, as in all other classes and kinds of cases, this rule has been applied when and as in the judgment of the judges it should be applied. And it is sufficient to refer to such cases as Hook v. Missouri Pac. R. Co., 162 Mo. 569 , [ 63 S. W. 360 ]; Artz v. Chicago etc. R. Co., 34 Iowa, 154 ; Browne v. New York Central R. Co., 87 App. Div, 206 , [ 83 N. Y. Supp. 1028 ]; Fox v. Pennsylvania R. Co., 195 Pa. St. 438 , [ 46 Atl. 106 ]; Chicago etc. Ry. Co. v. Kirby, 86 Ill. App. 57 ; Peters v. Southern R. Co., 135 Ala. 533 , [ 33 South. 332 ]; Wardner v. Great Nortluern Ry. Co., 96 Minn. 382 , [ 104 N. W. 1084 ]; Chicago etc. Ry. Co. v. Andrews, 130 Fed. 65 , [ 64 C. C. A. 399 ] ; Blumenthal v. Boston etc. R. Co., 97 Me. 255 , [ 54 Atl. 747 ]. The subject is well summarized by the supreme court of Missouri in Hook v. Missouri Pac. R. Co., 162 Mo. 569 , [ 63 S. W. 360 ], as follows:—

“When to look is to see, the mere utterance that one did look and could not see, will be disregarded as testimony by the court, and no additional value is to be given to the utterance because of the fact that a jury, under the direction of the trial court, has predicated a finding thereon. As the law does not permit a witness to blind his eyes to the sight of an approaching train in full view of a crossing he is to pass, neither will the eye of the law become blinded to the true situation of the case merely because of the absurd statement of a witness or witnesses, T looked and could not see,’ or the jury’s indorsement of it by a finding predicated thereon, when to look was to see.”

It is in the category of the cases last referred to that appellants insist the case at bar belongs. Their' contention,

The accident occurred about half past nine o’clock in the evening of July 12th. Plaintiff’s occupation was the breeding and training of trotting horses. He was expecting certain of his horses by railroad, and was going with a companion to the railroad yards to see whether they had arrived. The two were proceeding westerly along the southerly line of Tulare Street, a public highway in the. city of Fresno. Tulare Street crosses the right of way of the defendant company at practically right angles thereto—the street extending east and west, the railroad tracks north and south. Tulare Street is the main artery leading from the city proper to the west side (meaning west of the railroad tracks), which was plaintiff’s destination. Tulare Street, going from the east side to the west side, crosses eight lines of track in the freight yards of the Southern Pacific Company. There are varying distances between these lines of track. Numbering these tracks successively, and naming the easterly one, track 8, there were about twenty-eight feet between track 8 and 7, about twenty feet between track 7 and 6, about thirteen feet between track 6 and 5, and about fifty-eight feet between track 5 and 4. It was while crossing track 5 that plaintiff was injured. Plaintiff, with his companion, had proceeded along the southerly line of Tulare Street, across track 8, track 7, and track 6, and was struck by a box ear which with two other cars was being pushed ahead of a freight engine from the south, northerly along track 5. No gates were maintained at Tulare Street, and the flagman was over near track 4, fifty-eight feet west of track 5. Upon track 4, at this time, was a freight train, several blocks in length, extending completely across Tulare Street. The engine

Even in this brief statement it must be apparent that this case differs radically from those where all of the other evidence contradicts the plaintiff’s testimony that he did look and listen, by establishing that, if he did look or listen, he must have seen or heard. The evidence in this case as to the existing conditions is not even that of plaintiff alone. His statements are supported by disinterested, witnesses bearing testimony to the same facts. In addition, the evidence shows, though under conflict, that these cars were not only being thus silently propelled across the public highway in the night-time, but that the approaching car carried no warning light of any kind, nor even a brakeman to give a warning, the brakeman seemingly having dropped off to turn the switch to make the connection between the lead and track 5. Plaintiff, in glancing down the tracks and using both sight and hearing, could not see, for the absence of a train light; could not hear, because of the silence of the train, the failure to ring the bell or sound the whistle, and

Under this statement we think it unnecessary to enter upon an elaborate exposition of the conflicting evidence. Suffice it to set forth brief extracts from the testimony of two of the witnesses, Brooks and Cochrane. Brooks says: “Prior to the time I turned around, having heard the noisé, I did not hear any one call out, only the freight pulling out, just about to pass when they got run over, the freight to Mendota. I did not see any signals given there at that time.” Cochrane says: “When I looked I was about eighty feet away. I saw this train of cars backing up there with no light on the back car and I heard no warning at all, nobody hallooed and no warning was given. I am sure of that. The cars were rolling upon the Tulare Street crossing as I looked up. I saw Mr. Zibbell and Mr. McMahan walking

Clearly, therefore, the question of the contributory negligence of plaintiff was properly submitted to the jury, and the case belongs in the category of those like Henavie v. New York Central R. R. Co., 166 N. Y. 280 , [ 59 N. E. 901 ]; Calwell v. Minneapolis Ry. Co., 138 Iowa, 32 , [ 115 N. W. 605 ]; Meyers v. Central Ry. Co., 218 Pa. 305 , [ 67 Atl. 620 ]; Sullivan v. New York etc. Ry. Co., 73 Conn. 203 , [ 47 Atl. 141 ]; Baltimore Ry. Co. v. State, 104 Md. 76 , [ 64 Atl. 304 ]; Baltimore etc. Ry. Co. v. Cumberland, 176 U. S. 232 , [ 20 Sup. Ct. 380 , 44 L. ed. 447] ; Johnson v. S. P. R. Co., 154 Cal. 285 , [ 97 Pac. 520 ]; and Antonian v. S. P. Co., 9 Cal. App. Rep. 718 , [ 100 Pac. 877 ].

The employees of the defendant railroad who were made parties defendant in this action are M. C. Williams, foreman of the “switching crew” in charge of the train which caused the injury, 6. E. Lawrence, the engineer of the locomotive engine, and E. M. Pope, a brakeman. It is insisted that the verdict and judgment against Lawrence and Pope are unsupported by the evidence, Lawrence, however, was the engineer. It is inferable from the evidence, and must have been inferred by the jury from their verdict, that he was operating his train as it approached the crossing, without bell or whistle, that he was moving at undue speed, that he was coming into a straight track from a dangerous side lead, and that by reason of the cars and of the angle of this lead he could not himself see the conditions in front of his train. There was sufficient in this to uphold the verdict and judgment. It does not, however, appear that defendant Pope ivas responsible. True, he was a member of the switching crew, but his position was a subordinate one. He was a brakeman. It does not appear that he had the slightest control over the acts of his fellows, or that he was in authority to do other than what he might be directed to do. It is not perceived that he failed in any duty which the law exacted of him. Not being responsible for the conduct of his fellow employees, not being in such supervision or control over them that the doctrine of respondeat superior could apply, Pope could be responsible only for his own personal negligence, and such negligence has not been shown. Against him, therefore, this judgment may not be sustained.

It was shown that plaintiff had experience and skill in the breeding and training of standard bred trotting horses. Plaintiff’s father, an expert in the same business, was asked: “In 1906 what was the salary paid to trainers possessing the skill and experience of your son.” Over objection and exception he answered: “Well, the least I ever heard was $2500, any professional trainer, from that up.” Plaintiff also was permitted to testify: “It (the salary) varies from $2,000 to $2,500 up to $8,000 and $10,000 a year.” These questions were directed— not to the prospective profits of a business, but to the loss of earning capacity of the plaintiff by reason of his injuries. The answers, if admissible at all, were therefore admissible under the plea of general damage. Not going to the element of prospective profit from a business they did not come within the rule of Lombardi v. California St. Ry. Co., 124 Cal. 319 , [ 57 Pac. 66 ].

We think the evidence was properly admitted, its weight, of course, being for the jury. The plaintiff had proved what was his chosen vocation in life, and the nature of his skill and experience in following that vocation. The jury, in ignorance of the salary, emoluments, and financial returns going to one pursuing this vocation, were entitled to be advised upon the matter. This did not mean, and it cannot be supposed that the jury construed it to mean,' that they were from this evidence to say that, if incapacitated by his injuries, the plaintiff lost twenty-five hundred dollars, or six thousand dollars, or ten thousand dollars a year, but they were entitled to consider that if wholly incapacitated, he was excluded from the field of activity in which the usual compensations and rewards to men of his knowledge and experience reached a maximum of ten thousand dollars a year. The evidence was within the pur

The witness, Hamilton, was asked the following question:—■

“Did Mr. Cowley tell you in discussing this case that he. had testified before the coroner’s jury that he saw that train come to a dead standstill before reaching that switch and saw Williams climb down off the side-step in front of the train, turn that switch and come back again and give the signal to go ahead, and climbed up again ?”

After objection overruled and exception taken, he answered in the negative. As disclosed by the record the question was improper. It does not appear to have been designed for impeachment, or for any other permissible purpose; but the answer was in the negative, the inquiry was collateral, plaintiff was foreclosed by the answer, no attempt was made to follow the question and introduce the matter in evidence, and it is clear that injury was not worked to defendants.

The same witness, Hamilton, being interrogated as to the distance travelled by the train after the signal to stop, there was read to him the testimony upon this point which he had given at the coroner’s inquest. On re-direct examination defendants’ attorney offered in evidence all of the witness’s testimony given at the inquest. It was refused admission, and it is contended that this ruling was error under the familiar principle enunciated in the code, that when part of an act, or declaration, or conversation, or writing, has been given in evidence, all of it may be shown. But this rule is, of course, subject to the very proper limitation expressed in section 1854 of the Code of Civil Procedure, that it is all “on the same subject,” which may be developed and put in evidence. Thus, defendants were entitled to all of the testimony from Hamilton’s deposition, bearing upon the single question concerning which he was interrogated,—namely: the distance travelled by the ears; but they were not entitled to the introduction in evidence of other different and extraneous matter which the deposition contained. The ruling was therefore proper. (Vance v. Richardson, 110 Cal. 414 , [ 42 Pac. 909 ].)

Complaint is made of an instruction which states to the jury that, “If you believe from the evidence that the plaintiff sustained the injuries complained of in his complaint, through the carelessness and negligence of the defendant, without negligence on his part, then you should find for the plaintiff, Willard R. Zibbell, and assess the damages in such sum as you believe, under all the circumstances of this case in evidence, the

The instruction is criticised upon the ground that it authorizes the jury to assess damages in such sum as they believed plaintiff should recover, whereas the jury could only assess such damages as under the evidence would compensate plaintiff for the detriment proximately caused. (Civ. Code, secs. 3281, 3333.) This was but one instruction. The jury was repeatedly, accurately, and carefully instructed that, “the measure of damages is the amount which will compensate plaintiff for all the detriment proximately caused by the accident.” As employed in the instruction, the use of the word “believe” in connection with “all the circumstances of the ease in evidence,” was a clear equivalent to the words “find” or “determine,” and could not have misled the jury into the misconception that they were entitled to award anything other than compensatory damages in an amount established to their satisfaction by the evidence. Herein the case differs essentially from that of Fries v. American Lead Pencil Co., 141 Cal. 610 , [ 75 Pac. 164 ], where the one vital instruction upon the question of damage was an instruction to the jury that it was their “duty” to “give the child such amount of damages as you feel it is entitled to.” For under the Fries case the instruction was positive that it was the duty of the jury—not to give damages in compensation for the injuries, but to give such damages as through their feelings, and not through their judgment, upon the evidence, they thought the child should have. . . .

By one instruction the jury was told that it could not consider the profits of any business in' which the plaintiff may have been engaged, in estimating the amount of his damage. In another instruction they were told that they could consider; in estimating plaintiff’s damage, the loss of the earnings which he would have earned, if any, by reason of his injuries. It is contended that these instructions are in radical conflict. But we do not so view them. Plaintiff, not having charged in special damage for loss of profits, the jury was properly instructed that this element of special damage should not enter into their computation. But, upon the other hand, a loss of earnings—a direct loss, as distinguished from profits—a special and prospective loss—was a loss which the jury could properly consider under the general ad damnum clause. Treadwell v.

Toward the close of the trial suggestion was made that the jury visit the scene of the accident. Discussion between counsel followed as to whether the visit should be made in the daytime or at night, under circumstances as nearly as possible like those existing at the time of the accident. The court then asked the jurors to indicate if they wished to view the premises. No juror seemingly so desired. The following then took place:—

“Mr. Cory: I think in any event they ought to go down there and look at the conditions.

“Mr. Roche: I am perfectly willing to stipulate now that they may go down there at any time or under any circumstances and observe the conditions, the tracks together or alone or any other way.

“Juror Bennett: I think, if the court please, the majority of the jury have been down there, not together, but separately.

“Mr. Cory: Do I understand that you have been down there ?

“Mr. Bennett: No sir, not at one time, I was there.”

Upon this showing neither party made any objection to the conduct of the jury, nor suggested, nor asked any action upon the part of the court. It is now contended that the misconduct of the jury was such as to necessitate a new trial. All that appears is shown by the statement, and not by affidavits. Respondent insists that the matter not having been presented upon affidavits is not cognizable by this court. Section 657 of the Code of Civil Procedure provides that a new trial may be had:—■

“1. For irregularity in the proceedings of the court, jury, or adverse party, ... by which either party was prevented' from having a fair trial.”

Section 658 of the same code declares that: “When the application is made for a cause mentioned in the first . . . subdivision of the last section, it must be made upon affidavits.” (See Benjamin v. Stewart, 61 Cal. 608 ; Saltzman v. Sunset T. & T. Co., 125 Cal. 501 , [ 58 Pac. 169 ]; Gay v. Torrance, 145 Cal. 144 , [ 78 Pac. 540 ].)

The present case, however, is distinguishable from the cases

“The defendant cannot be allowed to remain quiet and take the chances upon a favorable verdict, and then raise a point that he knew of and could have raised during the progress of the trial.” This declaration is abundantly supported by our other decisions, as witness: Monagham v. Rolling Mill Co., 81 Cal. 194 , [ 22 Pac. 590 ]; Wood v. Moulton, 146 Cal. 317 , [ 80 Pac. 92 ]; Doolan v. Omnibus Cable Co., 140 Cal. 375 , [ 73 Pac. 1060 ]. And in other jurisdictions the construction to this

“Failure to object to the misconduct of jurors as soon as knowledge thereof is obtained and opportunity to object is presented is a waiver of the right to object, and the objection cannot be thereafter presented, as by a motion for a new trial.”

The jury’s verdict in favor of the plaintiff was for the sum of one hundred thousand dollars. Upon motion for a new trial, the court, with consent of the plaintiff, remitted thirty thousand dollars of this amount. These appeals are taken, therefore, from a judgment in the sum of seventy thousand dollars. It is contended that the damages are so excessive as to force the conclusion that they were given under the influence of passion and prejudice. And herein it is said that the verdict is twice the amount of the largest judgment ever rendered in the state of California in a similar ease, and is the largest verdict ever presented to an appellate court for review. It has been decided by this court that the only means of discovering the existence of passion and prejudice as influencing a verdict is by comparing the amount of the verdict with the evidence before the trial court. To say that a verdict has been influenced by passion and prejudice is but another way of saying that the verdict exceeds any amount justified by the evidence. (Doolan v. Omnibus Gable Co., 140 Cal. 375 , [ 73 Pac. 1060 ].) Damages in cases such as this are not liquidated. No fixed amount may be recovered, no exact proof of any fixed amount can, from the nature of the case and of the elements which enter into the award of damage, ever be made. The principal elements of damage for which compensation may be awarded are the physical and mental suffering caused and which will be caused by the injury, and the partial or total impairment of earning capacity likewise caused by the injury. To the latter the law may apply a measure—a rude and inexact measure it is true, but still a measure. The extent of the partial loss of earning capacity, the duration of that partial loss of earning capacity, the total loss of earning capacity, and the earning capacity of the plaintiff himself, may all be approximated with reasonable exactness. But to put a monetary value upon the elements of physical pain and mental suffering,

“His left arm was crushed and tom below the shoulder; his right hand and wrist were crushed and torn; his left foot and ankle were crashed; the bone of one of the toes of his right foot was broken and crushed; his right heel was crushed and torn to such an extent as to almost sever it from the foot; his right leg was fractured between the knee and anide, and the flesh on said right leg between the thigh and ankle was torn, cut, bruised and lacerated; his back, sides and shoulders, face and head were cut, bruised and wounded, and he sustained a severe nervous shock. By reason of said injuries to said left arm, it became necessary to amputate the same, and the said arm was on said 12th day of July, 1905, amputated below said shoulder. By reason of said injuries to said left foot, it became necessary to amputate the same, and the said left foot was on said last mentioned date amputated a short distance above the ankle. By reason of said injuries to said right hand and wrist, it became necessary to amputate the said right hand

at the wrist, and the said right hand was on the 13th day of July, 1905, amputated at the wrist. By reason of said injuries, plaintiff has suffered, and will continue for a long period of time to suffer great pain and mental anguish.”

At the time of these injuries plaintiff was twenty-seven years old, in perfect health, of robust constitution, skilled and experienced in the breeding and training of horses, earning about twenty-five hundred dollars a year in that vocation, and with a reasonable expectation and fair prospect of an increase of earning capacity and a betterment of financial conditions within his chosen vocation. By the accident his condition is changed from one of virile activity and competency to helpless incompetency. There is no occasion to-picture the pain, the grief, the mortification, the disfigurement, and the helplessness which have resulted, all of which will continue through the rest of his life, a period, within the mortality tables, of more than thirty-eight years. And so it must be said that, while the damages awarded in this ease are very great, the shocking character of the injuries, the loss of both arms and one leg, the permanent loss of earning capacity, the inevitable disabilities and the suffering endured, and necessarily to be endured, for more than thirty-eight years, present a case where the injuries are as grave as the damages are great, or at least, a case where there is no such marked disproportion between the character of the injuries and the award made for them as to suggest at once that the award was influenced by prejudice, passion, or corruption.

For which reasons the judgment and order as to defendant Pope are reversed and as to the other defendants they are affirmed.

Melvin, J., Lorigan, J., Shaw, J., Angellotti, J., and Sloss, J., concurred.

Rehearing denied.