Kramm v. Stockton Electric Railroad

The action was brought to recover damages for the death of plaintiff’s intestate, alleged to have been caused by the negligence of defendant. There have been three trials of the case, in the first of which a jury found a verdict for plaintiff, which was set aside and a new trial granted by the trial judge; in the second á motion for a nonsuit was granted and the order was reversed by this court (Kramm v. Stockton Elec. R. R. Co., 3 Cal. App. 606 , [ 86 Pac. 738 , 903]); in the last trial a jury again found a verdict for plaintiff and the trial judge set aside this verdict and granted the motion for a new trial, and from this order the appeal is taken.

It is admitted that the evidence was virtually the same at all these trials, the defendant calling no witnesses, but relying upon the testimony of the witnesses for plaintiff. This evidence was reviewed at considerable length by this court in said appeal, and it was therein said, through Presiding Justice Chipman: “To our minds it is quite obvious that there was sufficient evidence in support' of plaintiff’s case to require that it be passed upon by the jury. . . . Without further noticing the evidence or further comment, in our judgment the case should have gone to the jury, because, among other reasons, the jury as presumably ‘sensible and impartial’ men might have decided that the deceased exercised ordinary care (Herbert v. Southern Pacific Co., 121 Cal, 230 , [ 53 Pac. 651 ]), or that the motorman ‘had the last clear opportunity to avoid the injury, ’ in which case it was his duty to have done so. (Esrey v. Southern Pacific Co., 103 Cal. 541 , [ 37 Pac. 500 ]; Lee v. Market St Ry. Co., 135 Cal. 293 , [ 67 Pac. 765 ].) ”

In his opinion granting the motion for a new trial the learned judge of the court below declared: “The Court is satisfied: First—of the contributory negligence of the decedent, and that this is shown not only by a preponderance of the evidence but beyond any reasonable doubt. Second—

The foregoing naturally suggests the inquiry to what extent a trial judge is bound by the verdict of a jury and by what rule or standard must he determine a motion to set aside such verdict and grant a new trial? The subject has been frequently discussed by the supreme court. We cite the following cases: Groppengiesser v. Lake, 103 Cal. 42 , [ 36 Pac. 1036 ]; Harrison v. Sutter St. Ry. Co., 116 Cal. 161 , [ 47 Pac. 1019 ]; Green v. Saule, 145 Cal. 102 , [ 78 Pac. 337 ].

In the Harrison case it is said, through Mr. Justice Van Fleet: “That the granting of a new trial is a thing resting so largely in the discretion of the trial court that its action in that regard will not be disturbed except upon the disclosure of a manifest and unmistakable abuse has become axiomatic and requires no citation of authority in its support. It is true that such discretion is not a right to the exertion of the mere personal or arbitrary will of the judge, but is a power governed by fixed rules of law, and to be reasonably

In the Green case, Mr. 'Justice Shaw says for the court: “There is a clear and obvious distinction between the duty of a trial court and the duty of an appellate court with respect to the decision of such questions. The trial court cannot rest upon a conflict in the evidence, but must weigh and consider the evidence for both parties, and determine for itself the just conclusion to be drawn from it. If the judge is not satisfied with the verdict, and is convinced that it is clearly against the weight of the evidence, it is his duty to set it aside, even though there may have been some conflict in the testimony. ... Of course the judge should give due respect to the verdict of the jury, and may sometimes properly deny a new trial in cases where if submitted to him without a jury he might upon the evidence have made a different decision. He must be clearly satisfied that the verdict is wrong; otherwise he should let it stand. But in considering the question upon the motion he must act upon his own judgment as to the effect of the evidence. The parties are entitled to the judgment of the jury in reaching a verdict, in the first instance; but upon a motion for a new trial they are equally entitled to the independent judgment of the judge as to whether such verdict is supported-by the evidence.”

It is clear, therefore, that when the trial judge is satisfied .that a verdict is wrong and opposed to the evidence, if he refuses to set it aside he violates his oath of office. If he acts, though, from the most conscientious consideration of his duty and sets aside the verdict, it does not necessarily follow that his order will not be disturbed by the higher court. It must stand, however, as we have seen, unless the appellate tribunal, exercising its judgment as to the record, is compelled to find that there has been an abuse of dis

And this consideration must be viewed, of course, in the light of the obvious advantages possessed by the trial court in the determination of the weight of the evidence and the credibility of the witnesses.

Although of the opinion that the verdict of the jury finds support in some of the evidence, giving it full credit, and inclined, as we should be, not to interfere with his action, if the trial judge had denied the motion for a new trial, yet we are convinced that fair and impartial men might reasonably differ in their deductions from the evidence, and that it cannot be said that the order granting the motion is unsupported and unwarranted.

The trial judge had confidence in the veracity of the motorman and attached much importance to his testimony. We cannot say that the confidence was misplaced, and it is obvious that the motorman was most favorably situated of all the witnesses to observe accurately just what occurred at and immediately prior to the time of the accident. The motorman relates the occurrence as follows: “When I rounded this curve” (more than six hundred feet from the scene of the accident) “I threw off my current as was customary and at the curve, rounding the curve, the car was going by its own speed or momentum from the trolley. After I left the curve I applied one or two notches of the current again, that is about half the power. I did not increase that one or two

It cannot be said that there is anything inherently improbable in the foregoing statement. Giving it full credence, as the trial judge had a legal right to do, the conclusion followed not only that the deceased was guilty of contributory negligence, but that the motorman did everything to avert the accident that can be demanded of any reasonable man.

The rule is universally recognized that it is to be presumed that a person of mature years will not stand still upon a railroad track and suffer himself to be run down. It is also a presumption that all men are in possession of their senses and will exercise ordinary diligence in times of danger to take care of themselves. It is in accordance with these presumptions held that when the engineer of a locomotive engine sees ahead of him a man upon the track he can presume that the man possesses ordinary capacity, that he can see and hear and reason from cause to effect, and that as a train approaches him he will step aside and not be run over. The engineer—and the same rule will apply to a motorman of an electric car—provided he gives the proper signals, has a right to act upon that presumption until it may be too late to

There is undoubtedly some difference, from the nature of things, in the degree of care required in relation to a streetcar track and- a steam railroad, but in either event common prudence requires from the one upon the track the careful use of the senses of sight and hearing.

In Green v. Los Angeles etc. Ry. Co., 143 Cal. 31 , [ 101 Am. St. Rep. 68 , 76 Pac. 719 ], it is held that “the engineer had the right to assume that a person seen in a place of safety was in possession of natural faculties, and would not recklessly move in front of the approaching train, and was not required to stop or check the train to ascertain whether such person was about to do so; and the engineer did his whole duty in giving the alarm and trying to stop the train as soon as the person was seen tó step upon the track, though such effort was unavailing.” (See, also, Lambert v. Southern Pac. Ry. Co., 146 Cal. 231 , [ 79 Pac. 873 ].) Here not only had the motorman the right to assume, but it was an actual fact, as shown by the evidence, that the deceased was in possession of his natural faculties.

It is no answer to say that the attention of the deceased was engrossed by the water wagon and therefore he did not see nor hear the approaching car. In Wheat v. St. Louis, 179 Mo. 572 , [ 78 S. W. 790 ], it is said: “The contention of the plaintiff that he had a right to have his mind so engrossed in his business that he did not think of the obstruction or that he had passed it, is wholly untenable. Persons traveling on a highway are charged with a duty to exercise reasonable care to observe and avoid obstructions and defects. They have no right to be so engrossed in their own affairs as to be negligent of their own safety.” In Brett v. Frank & Co., 153 Cal. 267 , [ 94 Pac. 1051 ], it is held that the preoccupation or forgetfulness which does not bar recovery as a matter of law, but raises a question for the jury “only applies in exceptional cases having to do with abnormal risks and with the performance of duties under the high tension of emergency, and where the doing of one necessary thing under the' stress of immediate action does not charge a person with contributory negligence because he has omitted or forgotten another.”

There is nothing in any of the cases cited by appellant discrediting the inference drawn by the trial court from the

The Harrington and Green cases are not inconsistent, as claimed by respondent. This is made manifest by an examination of the opinions, but the latter and not the former is applicable here to the facts as detailed by said motorman.

We have thus treated the testimony of the motorman as acquitting the defendant of responsibility for the accident, but when we reach the conclusion that a reasonable man might draw such an inference from the evidence it is plainly our duty to affirm the order on the ground that there has been no abuse of discretion.

Appellant contends that the decision of this court on the former appeal determined the law of the case, and therefore necessitates a reversal of this order. The contention involves a misconception of the significance of “the law of the case” and of what was actually decided on the appeal from the judgment of nonsuit. The question of “the law of the case” has been recently discussed in Allen v. Bryant, 155 Cal. 256 , [ 100 Pac. 704 ], wherein it is said through Mr. Justice Henshaw that “the doctrine of the law of the case presupposes error in the enunciation of a principle of law applicable to the facts of a case under review by an appellate tribunal. . . . But since the rule owes its very existence to error, it is not one whose extension is looked upon with favor. The ruling is adhered to in the single case where it arises, is not carried

Much less can it be said here that the decision of this court on the former appeal is a controlling factor now. The question of law decided there was that there was some evidence-in favor of plaintiff which rendered her contention a proper-one to be submitted to the jury—not that it required a favorable finding in her behalf. Indeed, it is well settled, as stated by this court through Justice Hart in Bush v. Wood, 8 Cal. App. 647 , [ 97 Pac. 709 ], that a motion for a nonsuit “is tantamount to a demurrer to the evidence, or an objection that admitting all the proved material facts to be true said facts do not in legal effect operate in favor of plaintiff and it is further held that the evidence, whether erroneously admitted or not, must be given its full probative force, and that no question arising as to variance or the credibility of witnesses can be considered, and furthermore that the evidence must be taken most strongly against the defendant.

From what has already been said it is apparent that the-question now is whether the judgment of the trial court as to the credibility of the witnesses and the weight of the evidence and the proper conclusion to be drawn therefrom can be sustained. The questions are entirely different and independent of each other.

Appellant'relies upon the case of Horton v. Jack, but it is. not in point. Appellant says: “The case was first tried and the court granted a nonsuit. The appellate court ( 37 Pac..

The third trial was also before a jury with the verdict in favor of Jack. He lost again upon appeal, the supreme court holding ( 126 Cal. 526 , [ 58 Pac. 1053 ]), that “The testimony on the last trial being substantially the same as on the two former, under the previous decisions of this court in the case the lower court should have directed the jury, as requested, to bring in a verdict for the plaintiff for the amount admitted by defendant to be the value of the property converted.”

The fourth trial resulted as usual and was again reversed, the supreme court ( 140 Cal. 584 , [ 74 Pac. 139 , 355]), holding that “a decision rendered upon a former appeal becomes the law of the case upon a subsequent appeal when the facts and evidence are the same upon both appeals with an immaterial exception.”

Thus it will be seen, there was no question as to the credibility of the witnesses,, no conflict as to the facts was involved but the court determined that necessarily the same legal effect must follow from the same facts.

The result of the decisions upholding the action of trial judges in setting aside verdicts is in many cases to deprive the right to a trial by jury of all significance and efficacy, but it is a part of our judicial system to permit the judge to exercise his own independent judgment as to the evidence, notwithstanding a finding by a jury. Of course, however, it is and must be assumed that the power to set aside a verdict will only be used when the judge is entirely satisfied that to

The order is affirmed.

Hart, J., and Chipman, P. J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on April 17, 1909.