Stetten v. Yellow-Checker Cab Co.

Respondent was injured and his automobile

damaged as a result of a collision which happened at the intersection of Green and Franldin Streets, in San Francisco. Two other machines were involved in the collision, a taxi owned and operated by the appellant xCab Company, and a sedan owned and driven by the appellant Gunther; and respondent brought this action for damages against the Cab Company and Gunther, jointly, alleging that their joint negligence was the proximate cause of his injuries. The trial took place before a jury, which rendered a verdict against appellants for the sum of five thousand dollars, and from the judgment entered on said verdict appellants took separate appeals. As grounds for reversal the appellant Cab Company urges that the trial court erred in ruling upon the admissibility of evidence, that it erroneously instructed the jury as to the law relating to the right of way at intersections, and that the verdict was excessive. The appellant Gunther assigns as error the giving and refusal to give several instructions, including the one to which his coappellant objects.

The accident occurred at 3:30 o’clock in the afternoon of a clear day. The taxi was traveling easterly along Green Street toward Franklin, which intersects Green at right angles. Gunther was driving his automobile northerly on Franklin Street toward Green, and the two machines collided within the intersection somewhere easterly of the center thereof. The taxi then careened across and beyond the intersection into Green Street and struck respondent’s auto

In support of the claim that Gunther’s car ran into the taxi counsel for the Cab Company sought to show by the cross-examination of respondent’s witness Ross the precise manner in which the taxi and Gunther’s machine came together, but the court sustained objections made by Gunther’s counsel to the questions asked in that behalf, and the Cab Company - contends that thereby its right to cross-examine was unduly restricted. We find no error in the ruling because the witness repeatedly stated that his view of the exact point of contact of the two machines was obscured by the body of the taxi, and that consequently he was unable to tell which machine struck the other, or which portion of the machines were first in contact.

The driver of the taxi admitted that in driving along-Green Street at the time of the accident he was taking an-indirect route of travel to reach his objective, but explained that he was doing so to secure private information as to the number of a house. Counsel for Gunther cross-examined the witness on that point, endeavoring to show, as he stated, a different reason; and in answer to objections made by counsel for the Cab Company further stated in effect that he expected to prove that Jurd’s real reason for talcing that course was to escape from a man who was pursuing him and with whom he had nearly collided on another street a few minutes before the present accident took place. This man was afterwards produced as a witness on behalf of Gunther, but his testimony did not fully substantiate counsel’s statement. It is now contended that such cross-examination and the statement made by counsel in connection therewith constituted prejudicial error. Counsel for Gunther clearly stated, however, in answer to a direct question asked by the court that he was not seeking to inquire into the private affairs of the driver; and there is nothing in the record which would justify the belief that counsel was not acting in good faith when he declared the purpose of the cross-examination. We are of the opinion, therefore, that even assuming the cross-examination to have been improper, its effect was not prejudicial.

As to the amount of the verdict, the rule is well established that it is only when an award is so grossly disproportionate as to shock the sense of justice atid indicate that the amount of the award was arrived at as a result of passion or prejudice that it may be set aside (Averdieck v. Barris, 63 Cal. App. 495 [ 218 Pac. 786 ]; Martin v. Shea, 182 Cal. 130 [ 187 Pac. 23 ]; Anstead v. Pacific Gas & Elec. Co., 203 Cal. 634 [ 265 Pac. 487 ]); and that the only means of discovering the existence of passion or prejudice as influencing the award is by comparing the amount thereof with the evidence, the question being one primarily for determination in the trial court (Zibbell v. Southern Pac. Co., 160 Cal. 237 [ 116 Pac. 513 ]). In the present case respondent proved special damages approximating one thousand dollars, which included property damage, payment of the medical and hospitalization fees, and loss of time; and according to the medical testimony the personal injuries he sustained were severe and permanent. Besides having suffered minor cuts and bruises, the extensor tendon of the thumb was completely severed, and the radial nerve at the wrist was cut. The result of such injury, as the medical testimony shows, was as follows: “On pressure at various parts about the sear, where these nerves were that were included in the scar tissue, there was extreme tenderness and pain upon pressure. This combination of symptoms caused a disability of his right hand, due to the weakness of his thumb; to numbness, lack of sensation of the distribution nerve, and, third, because of the extreme pain.” Up to the time of the accident respondent was engaged in color photography work. Most of his time was spent in laboratories developing pictures, and the nature of the permanent injuries to his hand has compelled him to abandon

The court refused to give an instruction proposed by Gunther to the effect that if the jury found that as a result of the negligent acts of the taxi driver, and without fault on the part of Gunther, an “emergency” was created, Gunther “was not called upon to exercise all that presence of mind and carefulness that is required of a person of ordinary prudence under ordinary circumstances.” The refusal to give the instruction was justified upon the ground, among others, that the evidence wholly failed to show that an emergency existed. Assuming, however, that such an inference could be drawn, the refusal to give the instruction was not error, because the principle of law set forth therein was given in substance by the court in defining negligence, wherein it was stated that negligence “is not absolute or to be measured in all cases in accordance with the same precise standard, but always relates to some circumstance of time, place and person.” And in any event the refusal to give the proposed instruction cannot be said to have operated to Gunther’s prejudice because the application of the doctrine embodied therein is made dependent upon the proposition, as the instruction plainly states and as the numerous cases hold, that the emergency or perilous position, if any there be, was not brought about in whole or in part by the fault of the party seeking to invoke such doctrine; and here the jury found upon ample evidence that Gunther’s negligence proximately contributed to the cause of his collision with the taxi.

In one of the instructions relating to the subject of the right of way at intersections the court deviated slightly from the language employed by the statute (California Vehicle Act, Stats. 1925, p. 412) in that it used the words “reach an intersection” instead of “approach an intersection.” Later in its charge, however, the court gave another instruction proposed by Gunther upon the same subject, which was worded in the identical language of the statute;

The court also refused to give an instruction proposed by Gunther to the effect that if the jury found that he was entitled to the right of way at the intersection he had a right to assume that the driver of the taxi would yield the same to him. The refusal to give such instruction was not error because the same subject matter was fully covered by three other instructions proposed by Gunther, which the court gave. The appellant Cab Company complains of the contents of these three latter instructions upon the ground that the jury “was left in the dark as to the circumstances under which Gunther was obliged to yield the right of way to the taxi.” The rule of traffic declared by the statute as to the right of way at intersections (Stats. 1925, p. 412) is made subject, however, to the express provision that the vehicle claiming the right of way “is traveling at a lawful speed”; and here, as shown, the evidence is ample to support the conclusion reached by the jury that the taxi and Guther’s machine approached and entered the intersection at an excessive rate of speed. Consequently the driver of neither is in a position to claim the benefit of the statutory right of way rule nor to complain of the instructions given or refused upon that subject. (Rosander v. Market Street Ry. Co., 89 Cal. App. 721 [ 265 Pac. 541 ].)

It is claimed that there was no evidence to show that the injury to respondent’s hand impaired his future earning power, nor any evidence upon which the jury might base a reasonable estimate of the loss occasioned thereby, and that consequently the court erred in giving instructions upon those elements of damages. The evidence hereinabove set forth relating to the question of the amount of the verdict was, in our opinion, legally sufficient to justify the giving of the instructions complained of. (Storrs v. Los Angeles Traction Co., 134 Cal. 91 [ 66 Pac. 72 ].)

Appellant Gunther segregates a single sentence from several instructions given by the trial court upon the subjects of burden of proof and preponderance of evidence, and complains of its effect, claiming that the jury was thereby instructed in substance that Gunther was not entitled to a verdict unless there was a preponderance of the

An instruction was proposed by Gunther to the effect that if the jury found that “the sole proximate cause of the accident to respondent was the negligence of the taxi driver” and that Gunther’s “actions and omissions, if any, were remote and secondary,” Gunther was not liable. The court .modified the instruction by inserting after the words “remote and secondary” the clause “and not the sole proximate cause of the accident.” The only effect of the modification was to clarify the meaning of the term “remote and secondary,” which was not elsewhere defined in the instruction, and to distinguish that term from the term “sole proximate cause,” as used by appellant in the forepart of the instructions, and did not alter the legal effect of the legal principle embodied therein. The modification was therefore proper.

The final criticism made by the appellant Gunther is directed at the court’s use, in one of its instructions, of the term “proximately contributing to plaintiff’s injury,” claiming, that it should have used the term “negligence proximately contributing to the cause of the injury.” It is self-evident that the criticism is purely technical in character, and consequently requires no discussion to point out that it is entirely without force. (Blackwell v. American Film Co., 48 Cal. App. 681 [ 192 Pac. 189 ].)

In conclusion it may be stated that the court’s charge to the jury covers approximately twenty-six typewritten pages of the transcript, and with the exception of a few general instructions given by the court of its own motion, consists of instructions proposed by the parties to the action. We have fully examined the entire charge, and also the instructions which the court refused to give, and in our opinion the jury was fully, fairly and correctly advised on all legal points involved in the action.

The judgment is therefore affirmed.

• Tyler, P. J., and Gashin, J., concurred.

A petition for a rehearing of this cause was denied by the District Court of Appeal on October 26, 1929, and a

All the Justices concurred.