Harju v. Market Street Railway Co.

Plaintiff brought this action to recover damages for personal injuries sustained as the result of a collision between a cable car of the defendant Market Street Railway Company on which she was riding as a passenger and an automobile truck driven by the defendant Baumsteiger. The complaint charged that the injuries were proximately caused by the negligence of all of the defendants. Upon the trial the jury disagreed as to the defendants Market Street Railway Company and I. Crisci, the employee of said company. They brought in a verdict in favor of plaintiff and against the defendant Baumsteiger in the sum of $25,000 and from a judgment entered upon this verdict, defendant Baumsteiger appeals.

The collision occurred on September 14, 1929, on Castro Street between Elizabeth and Twenty-third Streets in San

Appellant first contends that the evidence without conflict establishes that the collision occurred solely by reason of the negligence of the defendant Market Street Bail-way Company. This contention is wholly without merit. There was a conflict in the testimony respecting the manner in which the street-car was operated and it may be conceded that there was some evidence from which the jury might have found that the railway company was also chargeable with negligence. On this issue the jury disagreed. By its verdict it found against appellant on the issue of appellant’s negligence, and if the evidence is sufficient to support this implied finding, the judgment will not be disturbed merely because there was some evidence of negligence on the part of appellant’s co-defendant. (Blackwell v. American Film Co., 189 Cal. 689 , 698 [ 209 Pac. 999 ]; Goehring v. Rogers, 67 Cal. App. 253 , 259 [ 227 Pac. 687 ].)

The evidence amply supported the finding that appellant was negligent and that such negligence was a proximate cause (if not the sole proximate cause) of the collision. It would serve no useful purpose to set forth in detail the testimony of the numerous witnesses. Appellant himself testified that the collision occurred approximately eighty-five feet down the hill from Twenty-third Street; that he had driven west on Twenty-third Street across the Castro Street intersection and while on Twenty-third Street he had seen the street-car approaching on Castro Street near Twenty-fourth Street; that he “made a curve” and backed down the hill, but that he did not look again in the direction in which he was proceeding and did not see the street-car again at any time after he got below “the

Appellant’s next contention is that the court erred in giving certain instructions requested by the defendant Market Street Railway Company. Assuming, without deciding, that such instructions were unduly favorable to the railway company and therefore erroneous, a reversal of the judgment against appellant would not be justified upon that ground (Goehring v. Rogers, supra); but appellant contends that these instructions in effect instructed a verdict against appellant. There are two complete answers to this contention in the present case. First, none of the assailed instructions amounted to an instruction for a verdict against appellant and second, all the evidence, including that offered by appellant, clearly demonstrated the negligence of appellant and we do not believe that any alleged error in the instructions on this subject could have resulted in a miscarriage of justice as to the appellant.

It is further contended that it was error for the Market Street Railway Company to place before the jury the fact that appellant was insured. As thus baldly stated there would seem to be some merit in the contention but the record shows that the only reference to insurance was contained in a statement made by appellant to a police officer after the accident. In substance appellant’s statement was that he was backing down Castro Street from Twenty-third Street on the east side of the street to get into a position to tow another stalled truck up the hill; that he heard the warning bell of the street-ear and then looked and in some manner gave the wheel a wrong turn and collided with the passing car; that the accident was his own fault and that he was fully insured. While it is true that any attempt to show that a defendant carries indemnity insurance is frowned upon and testimony offered for that purpose alone is objectionable and inadmissible, it has been

One further point is urged. Appellant contends that the damages are excessive. A review of the evidence convinces us that this claim is likewise without merit. - Bespondent was thirty-four years of age and had been an actress in Finland for about nine years before coming to this country. She had been here for twenty-two months and was in the employ of the Finnish Association teaching for the stage. She taught dancing, dramatics and singing. At the time of the accident sh'e was receiving $175 per month. Her injuries were serious. In addition to fractures of the left arm and shoulder, her most serious injury was a general crushing of the right leg. ■ Both the tibia and fibula were badly shattered, the former being broken into at least ten fragments and the latter into six fragments. There was a gap of some two and one-half to three inches in each of these bones in which there was no one fragment of sufficient length to bridge the gap. The artery between these bones was severed. The attending physician found the fragments so dirty and the chances of infection so great that amputation was considered. However, the' fragments of the tibia were removed, cleaned and replaced in their approximate positions. In order to avoid overlapping due to muscle pull, skewers were inserted in holes drilled in ■ the bone and traction was applied. These skewers remained in the bone for eight weeks and were then removed. To keep the fragments from bowing, the toe was pointed downward and leg placed in a cast. At the time of the trial, five months after the accident, the fragments were beginning to unite. Certain of the replaced fragments were dead

The judgment is affirmed.

Nourse, P. J., and Sturtevant, J., concurred.