Baker v. Western Auto Stage Co.

In this action for personal injuries, sustained in an automobile accident while a passenger on one of defendant’s auto buses, plaintiff recovered judgment for one thousand dollars, from which defendant appeals.

Defendant, a common carrier of passengers, runs auto stages or buses between Los Angeles and Bakersfield. Plaintiff was injured in a collision between one of defendant’s auto buses and another automobile, a Buick, owned and driven by a man of the name of Maxwell. At the time of the collision, defendant’s bus, .on which plaintiff was a passenger, was traveling from Los Angeles to Bakersfield. The collision occurred in Los Angeles County, at the intersection of Glendale Street and San Fernando Road. Glendale Street enters, but does not cross San Fernando Road. Plaintiff alleged, and the court found, that the collision "was the result of the negligent driving of the auto bus by defendant’s employee, William Dukelow. Immediately before the accident, Dukelow, driving defendant’s auto stage, was traveling northwesterly’ along San Fernando Road. lie approached the place where that road is entered by Glendale Street from his right. Maxwell, operating his Buick car, and traveling southeasterly on Glendale Street, was approaching the point where defendant’s auto bus would pass the intersection. Dukelow, traveling at a rate of thirty-five miles an hour, according to one of plaintiff’s witnesses, turned his machine toward the left-hand side of the road upon which he was. traveling, for the purpose of avoiding a collision with the Buick. Maxwell’s car struck the stage, with the result that the stage was turned over and plaintiff thrown under and

This case and another brought by Maxwell against this defendant and Dukelow were tried together in the court below, it being there stipulated that testimony taken in the one case should he deemed evidence in the other. During the trial a witness called by Maxwell testified that, coming upon the scene shortly after the accident, he questioned the driver of defendant’s auto bus, Dukelow, who, in reply, stated that he was traveling about twenty-five miles an hour, and, later, that he was not going over twenty miles an hour. In this same conversation, Dukelow, when asked why he did not use the emergency-brake, replied that he did not because it would have been dangerous to use it; that he could lock his

This brief sketch of the evidence will suffice for an understanding of the questions presented by this appeal. The grounds urged for reversal are: (1) That the court erred in admitting in evidence the declarations made by Dukelow shortly after the accident; (2) that the evidence fails to show any negligence on the part of defendant; (3) that the damages awarded to plaintiff, one thousand dollars, are excessive ; and (4) that the trial court failed to find that the accident was not due to negligence on the part of Maxwell, the driver of the Buick.

[1] Testimony as to the declarations made by the driver of defendant’s auto bus immediately after the accident was doubtless incompetent, as against this defendant. They were no part of the res gestae. But the error could not possibly have been the cause of a miscarriage of justice. There was nothing in Dukelow’s declarations as to the speed at which he was driving defendant’s auto bus that differed materially from his own testimony. He himself, when a witness in the case, testified that he was traveling along the San Fernando Road at a rate of twenty-five or thiry miles an hour, and that, as he approached the intersection, he slewed down to approximately twenty' miles an hour. So far, therefore, as Duke-low’s declaration related to the speed of appellant’s auto bus, it accords substantially with his own testimony given as a witness in the case. As to the remaining part of the objectionable declaration, that wherein Dukelow told the witness that he did not use the emergency-brake because it was less dangerous to use the foot-brake, no possible injury to appellant’s case could be caused thereby. Moreover, when the evidence of Dukelow’s declarations was offered, counsel for the Western Auto Stage Company, the appellant here, made a statement in reply to a remark by counsel for Baker, the respondent on this appeal, that may well have led the latter to believe that, as to his client, the objection to the evidence of Dukelow ?s declarations was not urged. The

[2] The finding as to defendant’s negligence is sustained by the evidence. As Dukelow, driving defendant’s auto bus, approached the intersection, traveling at a high rate of speed, according to plaintiff’s witnesses, the Buick, driven by Maxwell, was on Dukelow’s right-hand side. The Buick was approaching the intersection at the right of defendant’s stage, its driver, Maxwell, intending to make the turn. The Buick, therefore, had the right of way, that is, the right to cross in advance of the stage, and should have been allowed by the driver of the latter sufficient time to make the crossing. Had the stage been under such control as to enable its driver to bring it to a stop before crossing Glendale Street, the collision doubtless would not have occurred. There was a hedge at the first right-hand corner which the stage was approaching. The driver admitted 'that this obscured his vision of any vehicle that might be coming from that direction. He testified that he was within twenty feet of the first curb line when he first saw Maxwell’s automobile. Prom all the evidence, it was for the trial court to say whether, under the circumstances, defendant was or was not negligent in the operation of his auto bus. No such clear case is presented by the record as to make it appear as a matter of law that there was negligence or the lack of it on the part of defendant’s driver.

[3] As a result of his injuries, plaintiff was confined to his bed for the' greater part of three months; he had to remain in a hospital for twelve days after the accident; his hospital bill alone amounted to fifty-five dollars; he suffered considerable pain, even up to the time of the trial; as a result of his injuries he was partially incapacitated for labor; prior to the accident he had been a strong, able-bodied man, earning in his trade, that of builder and carpenter, four dollars a day; during all of the seven months intermediate the accident and the trial, and by reason of his incapacity, due to his injuries, he was unable to earn more than fifty-

[4] There is no merit in the claim that the. court erred in failing to make a specific finding as to whether Maxwell was or was not negligent in driving his machine. The averment of negligence in the complaint is this: “That . . . through the carelessness, recklessness and negligence” of the driver of defendant’s auto bus, the bus “was caused to collide with and against another auto .which was then and there being driven in a southerly direction on said Glendale Street . . . ; that by reason thereof, the said bus . . . was caused to* turn over . . . and plaintiff . . . was thrown under . . . and . . . thereby . . . injured.” Thus was the issue respecting defendant’s negligence presented by plaintiff in his pleading. The finding upon the issue of negligence follows, substantially, the allegation of the complaint. No more was necessary. Though it is quite possible that, if Maxwell was negligent, defendant was not, it was not for that reason necessary to find specifically that Maxwell was not negligent in order to justify a judgment against the defendant here. The complaint presents no direct issue respecting carefulness or negligence on Maxwell’s part. He is not mentioned in the pleadings. The finding of defendant’s negligence substantially in the language of the complaint, and that plain

We find no reversible error in the record.

Judgment affirmed.

Thomas, J., and Weller, J., concurred.