Eldridge v. Clark & Henery Construction Co.

This is an action for damages for personal in-

juries. The cause was tried by a jury and a verdict returned in favor of plaintiff for the sum of fifteen hundred dollars, and judgment entered accordingly, from which judgment the defendant appeals.

The plaintiff, who at the time she sustained the injuries complained of, and for some time prior thereto, lived separate and apart, though not legally divorced, from her husband, and who was of the age of fifty-nine years, and weighed about 175 pounds, resided at No. 1717% N Street, in the city of Sacramento. She was compelled to earn her own living, and to do this was required to leave her home and do the variety of duties incident to general housework. When thus engaged she earned fifty cents an hour. For about six weeks prior to the date of the accident she had continuously thus been employed.

The defendant, as its name to some extent implies, is engaged in the business of constructing, reconstructing, paving, and repaving of streets and other public thoroughfares. At the time of the accident the defendant was engaged in “reconstructing, repaving, and repairing Seventeenth Street and alley and installing curbing at a place near the Northeast corner of said street and alley, between N and 0 Streets, on the line with the easterly sidewalk of said Seventeenth Street,' ’ in the city of Sacramento. It should be stated that N Street runs, practically, in a southerly and northerly direction, while the alley referred to runs likewise in an easterly and westerly direction. The work of improving Seventeenth Street, as indicated, had been under way for some days prior to the date of the accident in which plaintiff was injured, and the street was, while undergoing improvement, in a condition in which its general use by the public was not entirely safe or convenient.

On the evening of the twelfth day of May, 1923, near the hour of 8 o’clock, the plaintiff left her home, intending to attend a dancing party at Oak Park, in the city of Sacramento. Walking west from her home until she reached the southeast corner of Seventeenth and N Streets, she turned at said corner and proceeded south on the east side of Seventeenth Street toward P Street for the purpose of taking

The above embraces a general statement of the circumstances under which the accident occurred. The complaint sets forth substantially those facts in appropriate language and the defendant by its answer specifically denies all the material facts thus alleged. The answer also sets up as a special defense contributory negligence on the part of the plaintiff.

Points made for a reversal are: 1. That the evidence shows, as a matter of law, that the plaintiff was guilty of contributory negligence which proximately caused the accident in which the injuries she received were sustained; 2. That the court erred in its rulings allowing certain testimony to be received and also in its rulings upon certain questions propounded to the jurors on their voir dire examination ; 3. That the verdict is excessive.

The plaintiff, after stating the facts which are comprehended within the above statement, testified that at the time she met with the mishap the night was very dark; that at the place where the accident occurred the darkness was intensified by the existence of trees standing near said place; that there was no light or barrier at the point on the sidewalk in the alley where the accident occurred; that when she reached the alley she stepped off and into the excavation and was thereby thrown to the ground as above described. She stated that, although from the time she was assisted to her feet until she returned home that night she suffered severe pain in her arm, she, nevertheless, attended the dance at Oak Park; that she complained to friends that she met at the dance that her arm was paining her severely and that they advised her to have it bandaged with gauze satu

Dr. W. W. Cress, city physician of Sacramento, and as such in charge of the Emergency Hospital of said city, who professionally attended the plaintiff, testified that the principal injury suffered by her was that of an impacted fracture of the large bone in the right wrist. He explained that an impacted fracture is where the ends of the bones are driven together and also stated that such a fracture would be slower to heal with a person of the age of plaintiff than with a younger person. He stated that it was an injury from which much pain would naturally follow; that the plaintiff was attended by him for several weeks, a part of which time was in her visits to the Emergency Hospital and a part thereof at his own private office, where he treated her in his private and not in his official capacity as city physician. He stated that there was a swelling of the wrist; “injury to the soft part, including the blood vessels, and ligaments, tendons and joint structure. With an elderly person,” the doctor continued, “there is much more pain, especially with an impacted fracture so close to the joint.” The doctor said that in reducing the fracture there was a very good union of the bone and a very good alignment, but not a perfect alignment. He further stated that she “still has some limitation of motion in the wrist”; that the fracture was different from an ordinary one and that while she might be able to use the right arm in the

The plaintiff introduced in evidence an ordinance of the city of Sacramento entitled “An ordinance to prevent the obstruction of streets, alleys and public places in the City of Sacramento . . . and fixing a penalty for the violation of the provisions of said ordinance.” Section 6 of said ordinance provided that “any person by whom or under whose direction or by whose authority as principal, or as contractor, or employer, any portion of a public street, sidewalk or alley may be made dangerous, shall be wrecked, and so long as the danger may continue, maintain, around or over the place so made dangerous, a good substantial barrier, or walk which said barrier or walk shall be constructed in such a manner that it shall be with the approval of the building inspector; and there shall be maintained during every night from sunset until daylight, a lighted lantern or lanterns, around the place so made dangerous.” It was stipulated by counsel that there was no moon on the evening the accident occurred.

The district manager of defendant testified that a watchman was employed to see that barricades and lights were maintained at night-time on the street while undergoing improvement, such barricades being kept where there were holes or excavations in the street or alley.

The witness Howe, who was in the employ of defendant at the time of the accident as a night watchman at the point where Seventeenth Street was being improved and whose duties were to put out and maintain at night-time lighted lanterns and barricades at places where there were holes or excavations in the street or alley, testified that just before sunset on the evening of May 12, 1923, he

Two physicians, testifying for the defendant, stated that, a few days before the commencement of the trial of this action, they, one at one time and the other on another and different occasion, examined the injured wrist of plaintiff and found that the injuries she had suffered had been skillfully remedied and that the wrist was in excellent condition; that there was no evidence that the injuries or the effects thereof were permanent, nor did they discover any reason for believing that the plaintiff was, at the times of their respective examinations suffering pain from the injuries she received, although she then complained of suffering pain. One of these physicians, however, stated, as did Dr. Cress, that the fracture had left a slight deformity, due to the thickening of the wrist joint.

[1] The foregoing is substantially all the testimony received at the trial both for plaintiff and defendant. It will thus be seen that upon the question whether there was a lighted lantern or any artificial light at the point in the sidewalk where the accident occurred, the evidence is in, positive conflict. In fact, while it is true that the night watchman of the defendant stated that before sunset of the day the plaintiff was injured as described by her he placed a lighted lantern reflecting a red light at the excavation in the alley, he did not say, nor did any other witness testify, that such a light was at said place at the time the accident occurred. It was for the jury to resolve the evidentiary conflict upon that question, and the verdict im

It is not clear that counsel for defendant takes the position that the general knowledge, as shown by her own admission, which plaintiff had of the condition of the street itself prior to the accident was sufficient to charge her with knowledge or notice of a like condition of the sidewalk. The case's cited by counsel would seem to imply that such was Ms contention. Those cases apply the familiar rule that where a person uses a street or sidewalk which his observation, prudently exercised, would inform him was dangerous, he takes the risk of such injuries as may result to him from open and apparent defects such as his observation ought to have detected and avoided. (Slaughter v. City of Huntington, 64 W. Va. 237 [ 16 L. R. A. (N. S.) 459 , 61 S. E. 155 ]; Moore v. Huntington, 31 W. Va. 849 [ 8 S. E. 515 ].) ” Or, as the rule invoked by defendant is stated in Abbott on Municipal Corporations, section 105: “When the defect is open a traveler must take into consideration this fact, and, if he is injured, through an attempted use of a highway in a notoriously defective and dangerous condition, he is chargeable with contributory negligence.”

The ease of Slaughter v. City of Huntington, supra, was where the plaintiff, in the night-time, while a rain was in progress, the night being unusually dark, attempted to use a street which had been plowed and excavated preparatory to the repavement thereof and which was in a dangerous condition for use by reason thereof at the time he made such attempt, having full knowledge of such condition of the street

On taking up the examination of the jurors on their voir dire, counsel for plaintiff asked the talesmen, collectively, “if any of you are stockholders in any insurance company that carries any insurance for the Clark & Henery Construction Company, by reason of any personal injuries that might be caused?” to which question objection was made on the usual grounds by counsel for defendant, but overruled by the court. Each of the talesmen returned a negative answer to the question.

Defendant cites a number of eases from this and other jurisdictions as in confirmation of his contention that the above indicated line of examination of the jurors on their voir dire was not only improper but prejudicial and compels a reversal. Among the cases so cited is that of Arnold v. California Portland Cement Co., 41 Cal. App. 420 [ 183 Pac. 171 ]. The following are the questions propounded to the talesmen in that ease:

“ ‘Now, if you were sworn as a juror, and during the trial of this case, near the end of it, you should learn that the New Amsterdam Casualty Company, one of these surety

companies, was a surety at the time of this accident alleged, or an insurer against any injury to employees, would that in any wise affect your verdict in this case?’ Also: ‘And if it came to your knowledge, if you were a juror in this case, and it came to your knowledge from any source whatever, that the New Amsterdam Casualty Company was a surety for any injury to the employees of the defendant company at the time of this alleged injury, would that knowledge of that fact in any wise influence your verdict in the ease?’ ”

The court held that, while “there is a decided divergence of opinion among the courts of the several states as to the right of counsel for plaintiff in a personal injury action to suggest in any way, in the presence of the jury, that an indemnity insurance company is an actual party in interest,” held that the conduct of counsel for plaintiff in that ease in asking the questions was improper and prejudicial, citing a number of cases, and upon that conclusion ordered a reversal of the judgment. Among other things, the court in its opinion said:

“It is entirely proper for counsel to ask the jurors such questions as may reasonably be necessary to ascertain whether they are free from a bias or interest that may affect their verdict. To this end it is proper for counsel, in good faith, to ask of each juror whether he is interested as an agent or stockholder or otherwise in a specified casualty company. Or he may be asked the broad question whether he is interested in any insurance company insuring against liability for negligence. (Rinkin v. Acker, 125 App. Div. 244 [ 109 N. Y. Supp. 125 ] ; Grant v. National etc. Co., 100 App. Div. 234 [ 91 N. Y. Supp. 805 ].) But counsel must take pains to propound such questions in such a manner as not unnecessarily to convey the impression that the defendant is in fact so insured. It is misconduct on the part of counsel for plaintiff in such actions so to frame his question that it goes beyond what is reasonably necessary to serve the legitimate purpose of eliciting the facts he is entitled to adduce in order to secure a jury free from bias or prejudice, if it is also apparent that the question may fairly be said to have the effect of serving the illegitimate purpose of prejudicing the jury by fixing in their minds the idea that the defendant is protected by insurance against liabil

ity for negligence. And if the amount of the verdict is large as compared with the nature of the injuries sustained, or the defendant’s liability is a close question, such misconduct is prejudicial amd grovmd for reversal.”

It is readily to be observed that there is some difference between the questions asked the talesmen in the Arnold case and the question likewise asked in the case here. In the former case, the questions were not, as in the case here, whether any of the jurors were stockholders in amy company “that carries insurance,” etc., for the Clark & Henery Construction Co., but, substantially, whether the jurors, should they learn during the course of the trial of the case, or should it come to their knowledge from any source, that a certain named surety company was, at the time of the accident therein involved, a surety for the defendant against any injuries to its employees, would allow that fact in anywise to affect or influence their verdict in the case. The form of the questions propounded in that ease itself plainly indicates that the purpose of that line of inquiry was to get before the jury the fact that the defendant therein was not the real party in interest in the defense of the action. This conclusion is sustained by the consideration that the questions so asked were not followed up with an inquiry as to whether any of the jurors were interested as stockholders or otherwise in any or the particular surety company named. It would amount to an unjust imputation against the acumen or good sense of a lawyer to say that the attorney asking those questions would not know that the effect of giving information to a jury in a personal injury case of the fact of the indemnification of the defendant therein by a surety company against injuries caused through his or its negligence would be, if having any such effect at all, to prejudice the defendant’s ease in the minds of the jury. The very theory upon which the cases have held such an inquiry improper, and, under certain circumstances, prejudicial, is that there is such a strong popular prejudice against surety or other insurance companies that juries trying issues in an action in which it is sought to establish the liability of such corporations are very apt to permit their judgment to be improperly swayed by such prejudice. Another reason given by the cases for the exclusion of testimony in cases of this character disclosing the fact that the

Here the question to the jurors was addressed directly to the proposition of whether they were in any way interested in any surety company, and, while it is true that the question also embraced a query as to whether they were stockholders in any company “that carries any insurance for the Clark & Henery Construction Company,” thus implying that said company carried indemnity insurance, still, viewing the question as a whole, it is to our minds quite clear that the central purpose thereof was to ascertain whether there existed in that particular any ground for the exercise of a challenge, either for cause or peremptorily, and that the question was, therefore, asked in good faith. [4] Of course, the “good faith” or “good motive” in the asking, of an improper question cannot make it a proper question, but where an improper question propounded to a juror or a witness is thus prompted, it does relieve from the imputation of wilful misconduct on the part of the party asking it in that thus he made a purposed attempt wrongfully to influence the jury. But it would be idle to argue that the question to the jurors in this case does not go beyond the restrictive qualification to the right to ask such a question at all pointed out in the Arnold and other cases dealing with the same proposition, for obviously it did. [5] Conceding, however, as well we may, that the question asked in this case was, technically, equally as objectionable as were those asked in the Arnold and other cases in which the identical point has been considered and passed upon, still it does not necessarily follow that the judgment herein should be re

[6] The same question as the one above considered is in a different aspect also presented. It arose from the following cross-examination of one of the physicians who testified for the defendant as an expert as to the nature, extent, and the general effect of the injuries received by plaintiff: “Q. In the examination of this plaintiff, were you employed by the Georgia Casualty Company? The Witness: I was employed by Mr. Gibson. Mr. Welsh: You sent a report, did you not, to the Georgia Casualty Company? Mr. Welsh: You have a copy of the report in your files. The Witness: The Georgia Casualty Company, 41 Montgomery Street,

The cases are not uniform upon the question whether under any circumstances such a line of inquiry in the examination of witnesses in personal injury cases is permissible. There are many cases in which the question is considered, but we will not review them herein. It is, though, quite obvious that it would be highly improper to allow the plaintiff in a personal injury case to show, as an independent fact, having no relation to the other proved facts, that the defendant is protected by indemnity insurance against the payment of any damages which may be awarded against him for injuries directly caused by his negligence. If it is at all competent or legally proper to show the fact, it, perhaps, would have to be done through cross-examination of some witness as in impeachment of his testimony or by way of the impeachment of some special defense. It has been held to be proper to go into the question for the purpose of rebutting the claim of defendant that employees of a certain department of the business conducted by defendant were under the sole control of another party as an independent contractor with defendant. (Barg v. Bousfield, 65 Minn. 355 [ 68 N. W. 45 ].) As going to the question of the credibility or the weight of his testimony, it would seem that it ought to be proper for plaintiff to show by cross-examination of a physician called by defendant to testify and who does testify that he had examined plaintiff’s injuries and found that they were less serious in nature and effect than as claimed by plaintiff, that such physician had been specially employed by a surety company by which defendant was indemnified against the payment of any damages awarded against him to make such examination and state the result thereof to the jury. (See sec. 1868, Code Civ. Proc.) Such, however, is not the rule in this state, so our decisions seem to hold. (McPhee v. Lavin, 183 Cal. 264 , 269 [ 191 Pac. 23 ]; Roche v. Llewellyn, 140 Cal. 563 [ 74 Pac. 147 ].) But we do not think that the case should be reversed because of the error involved in allowing the physician thus to be questioned by the plaintiff. This conclusion is founded on the reasons above given for holding that the act of the trial court in allowing the examination of the

[7] The next and last point urged by defendant is that the amount of damages awarded plaintiff is excessive. This point has practically been answered above in the discussion of the contentions that error was committed in permitting plaintiff to ask the tentative jurors called to the jury-box the question as to defendant’s indemnity insurance and the cross-examination of one of the physicians testifying for defendant along the same line. It may be added, however, that, in view of the ordinance of the city of Sacramento expressly superimposing upon defendant the duty of maintaining lights at all dangerous points on the street or sidewalk, it was negligence per se for it to have failed in the performance of that duty. But, regardless of that consideration, if the testimony of plaintiff and her witness, Hall, is true (and we must, in view of the verdict, so accept it, since it is not inherently improbable) the defendant, in failing to maintain a light and proper safeguards about the excavation as a protection to those attempting to use the sidewalk at that point was guilty of gross negligence. We are firmly of the conviction that, under all the circumstances of the case, it would be an unjust invasion of the province of the jury for this court to declare the verdict excessive. [8] Of course, it is to be conceded that the matter of assessing damages in a personal injury case is generally attended with more or less difficulty. The element of pain and suffering, which is proper to be taken into account with other elements in determining in such cases what

“It is clear that the reason for holding the parties so tenaciously to the damages found by the jury in personal torts is, that in cases of this class there is no scale by which the damages are to be graduated with certainty. They admit of no other test than the intelligence of a jury, governed by a sense of justice. It is, indeed, one of the principal causes in which the trial by jury has originated. From the prolific fountain of litigation numerous cases must daily spring up, calling for adjudication for alleged injuries, accompanied with acts and circumstances affording no definite standard by which these alleged wrongs can be measured, and which, from the necessity of the case, must be judged of and appreciated by the view that may be taken of them by impartial men. To the jury, therefore, as a favorite and almost sacred tribunal, is committed by unanimous consent the exclusive task of examining those facts and circumstances, and valuing the injury and awarding compensation in the shape of damages. The law that confers on them this power and exacts of them the performance of the solemn trust, favors the presumption that they are actuated by pure motives. It therefore makes every allowance for different dispositions, capacities, views and even frailties in the examination of heterogeneous matters of fact where no criterion can be supplied; and it is not until the result of the deliberations of the jury appears in a form calculated to shock the understanding and impress no dubious conviction of their prejudice and passion that courts have found them

selves compelled to interpose.” (See, also, Bonneau v. North Shore R. R. Co., 152 Cal. 406 [ 125 Am. St. Rep. 68 , 93 Pac. 106 ]; Lee v. Southern Pac. R. R. Co., 101 Cal. 118 [ 35 Pac. 572 ]; Wilson v. Fitch, 41 Cal 368 ; Wheaton v. North Beach & M. R. Co., 36 Cal. 590 ; Aldrich v. Palmer, 24 Cal. 513 ; Scally v. W. T. Garratt & Co, 11 Cal. App. 138 [ 104 Pac. 325 ].)

We think it would work an injustice to do otherwise than to sanction and support the result arrived at below, and, therefore, the judgment is affirmed.

Plummer, J., and Finch, P. J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on January 9, 1926, and a petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 8, 1926.