Pedrow v. Federoff

This is an action for personal injuries alleged to have been received by the plaintiff Lydia Pedrow through and by the negligence of the defendants. The complaint alleges the facts in detail, and prays for damages—damage to Lydia Pedrow, damage to Thomas J. Pedrow, and for doctor’s bill and medicine, each separately stated—in the total sum of $1,750. The answer specifically denies the allegations of the complaint and sets up as a special defense contributory negligence.

The cause was tried by the court without a jury and plaintiffs were awarded judgment in the sum of $369.

The defendants appeal from the judgment, supporting the same by a transcript of the proceedings taken at the trial as authorized by section 953a of the Code of Civil Procedure.

The principal point is that there is no evidence which sufficiently supports the findings.

The plaintiffs, as the title indicates, are husband and wife, and, at the time the injuries herein complained of were sustained, resided in Yuba City, in Sutter County. The defendant Federoff was .at said time the owner of a taxicab business in the city of Marysville and locally en

The facts as herein stated will be based largely upon the testimony of the plaintiff Lydia Pedrow.

The home of the plaintiffs, at the time the injuries were received by Lydia Pedrow, was at 143 Kiley Avenue, in Yuba City. In front of their home was an embankment, which sloped perceptibly toward the curbing directly in front of the residence.

At and before the day on which the accident occurred both plaintiffs were employed at a laundry in the city of Marysville, her duties being those understood as a “press” worker. The elder of the two daughters of the plaintiffs was, at the time Lydia Pedrow received her injuries, and had been for a period prior thereto, attending school in the city of Marysville and the younger child was then attending school at Yuba City. J

Early on the morning of the twelfth day of May, 1924, Lydia Pedrow left her home in Yuba City for Marysville, for the purpose of purchasing a can of oil to be used in oiling a vacuum cleaner. She was accompanied by her two daughters and her husband, the latter going to Marysville for the purpose of resuming his daily labors at the laundry above spoken of. They arrived in Marysville shortly before 8 o’clock A. M. and, after making the purchase of the oil, she started on her return home. This was about 8 o’clock. She noticed a taxicab standing at a corner of a street in Marysville, not far distant from where she stood when she first observed the cab, and, being anxious to get back to her home as soon as possible because of the fact that her younger daughter was required to report at school in Yuba City at the hour of 8:30 A. M., she sent one of the girls to the taxi driver to inquire what his charge would be to convey the three to Yuba City. The charge for the service being satisfactory, she and the two girls entered the cab and were driven to Yuba City and directly to their home. The cab was stopped in front of her residence, the door

Both plaintiffs testified that, for several weeks after Mrs. Pedrow was hurt, the husband was compelled to perform the household duties of their home. These he would attend to in the early morning before going to work and in the evening on returning from work. The elder daughter was required to remain home from school to assist her mother until the latter’s injured limb was removed from the cast. Mrs. Pedrow testified that she had suffered more or less pain from the injuries from the time she received them down to the time of the trial, a period of over five months from the time she was hurt. Particularly, in damp weather, she said, was the pain noticeable. She received as compensation for her work at the laundry, when employed, the sum of 119.50 per week.

The explanation by Mrs. Pedrow of the manner in which she fell or was thrown to the ground was in part corroborated by her daughter (the elder of the two) and a Mrs. Mack, a neighbor, whose house was next to that of the Pedrows. Mrs. Mack stated that she was out on her porch engaged in sweeping when the cab stopped in front of the Pedrow home. The Pedrow children first alighted from the cab, and then, as Mrs. Pedrow was attempting to do likewise, one foot being on the running-board and the other on the inside of the car, and her body being “half in and half out” of the car, the cab made a sudden move, throwing Mrs. Pedrow to the ground. She stated that the driver was in his seat in the cab when it made the move.

The testimony of the driver of the cab, O’Neil, was di-. reetly contradictory to the testimony of Mrs. Pedrow as to the manner in which she fell to the ground and was to the effect that the cab was standing perfectly still when Mrs. Pedrow left the car and in doing so fell to the ground. O’Neil testified that the moment that he reached a point directly in front of the Pedrow home, he stopped the motor and that the ear did not move, nor was it moved after he stopped it and until he started on his return to Marysville. He stated that Mrs. Pedrow fell after her feet struck the

Certain witnesses for the defense testified that Mrs. Pedrow, prior to bringing this action, and shortly after the accident, made certain statements as to the manner in which the accident occurred which, if true, would be inconsistent with her testimony given at the trial. This impeaching testimony, however, she contradicted, positively declaring it to be a fabrication.

[1] It will not be disputed that if, as Mrs. Pedrow testified, the cab made a sudden jerk or lurch or moved while the driver was still in his seat at the wheel and she, exercising due care when in the act of leaving the cab, was thrown to the ground and received the injuries by reason of such moving or lurching of the cab, then, manifestly, the court, believing her story, was legally authorized to find that the proximate cause of her injuries was the negligence of defendant and, consequently, not due to negligence on her part. [2] It is to be conceded that, upon the face of the record, there is a conflict in the evidence upon the question of how the accident resulting in the injuries happened, but it is a substantial conflict. In such a situation as to the evidence, this court, as is well understood, is without legal right to interfere with the verdict, so far as is concerned the evidentiary phase of the case. [3] It is only where, upon its face, the evidence from which findings necessary to uphold the judgment have been drawn is so weak and unsatisfactory as to justify the conclusion that it, as a matter of law, affords no support to such findings, or is inherently improbable, and, therefore, unbelievable

[6] We cannot say that the judgment is excessive. The doctor testified that for the professional services rendered Mrs. Pedrow by him his fee amounted to $60, and it was shown that the plaintiffs paid $9 for medicines to be used and which were used in the treatment of Mrs. Pedrow’s injuries. The court, in deciding the case, stated that it “will allow $369.00 damages—that includes the doctor’s bill and medicine,” and, as seen, rendered and caused to be entered judgment in accord therewith. There is thus left the sum of $300 to plaintiffs for damages as in compensation for the damage actually sustained. That sum appears to constitute a reasonable admeasurement, in terms of money, of the damages which will at least approximately compensate plaintiffs for the injuries and the consequences to them following therefrom. There was the loss of wages for several weeks, also the pain and suffering Mrs. Pedrow endured when the injuries were still fresh and at the time of the trial, which took place something over five months after the accident happened, and possible future suffering. [7] It is, of course, always difficult in cases of this character to fix the amount which should be allowed for the element of pain and suffering, present and future, but unless it can justly be said, as a matter of law, that the damages awarded by the verdict or the judgment “are so far disproportionate to any compensation reasonably warranted by the facts as to shock the sense of justice and raise the presumption that they are the result of passion or prejudice, rather than of honest and sober judgment,” interference with the verdict or the judgment by a court of review is forbidden. (8 Cal. Jur., sec. 88, p. 834, and cases named in the footnote.) As before indicated, under the state of the record as to the evidence in this case, we cannot so hold here.

The defendant complains of the action of the court in excluding from the courtroom during the progress of the trial

The record does not show that, in making the order excluding the witnesses, each of the latter was first called by name and thereupon directed by the court to remain outside the courtroom while the trial was going on and until called to testify, and it is, therefore, to be assumed that O’Neil was not specially commanded to depart from and remain outside the courtroom until required to give his testimony, and, of course, being a party to the action, was not, and could not have been so intended to be, subject to the order of exclusion. Counsel for defendants better than the judge knew who O’Neil was—whether he was the defendant O’Neil or only a witness having no interest in the case other than as a witness—and, knowing that a party to an action is entitled to remain in the court during the trial of such action and aid in and observe the progress thereof (Chester v. Bower, 55 Cal. 46 , 48), it was his duty to protect the right of O’Neil in that respect by calling the attention of the court to the fact that he (O’Neil) was a party to the suit. Having failed to take that course, counsel can blame no one but himself for the act of O’Neil in absenting himself from the courtroom under the mistaken belief that the order of expulsion included him. But, aside from these considerations, it is clear, from the record, that defendants suffered no prejudice from O’Neil’s absence from the courtroom while the trial was in progress, as (so the record would indicate) his absence was not discovered, or at least it was not suggested, until the plaintiffs had rested their case and the defendants were about to introduce their defense. Evidently counsel for defendants had found no use for O’Neil’s presence while the plaintiffs were introducing their proofs or when their witnesses were undergoing

When counsel for plaintiffs were about to take up the cross-examination of the defendant O’Neil, the court interrupted, addressing the defendant Federoff and one Winship, the latter, a witness for plaintiffs, having already testified, and saying: “Stop your talking back there, Gentlemen. Don’t look at me that way. Leave the room.” Thereupon, so the record states, Mr. Federoff and Mr. Winship left the room. The defendants assign the action of the court in thus ordering Federoff to leave the courtroom as misconduct prejudicial to the rights of the defendants. It is to be presumed that, when the court ordered the parties named to “stop talking,” the latter were speaking in a tone of voice sufficiently audible to disturb the proceedings. [9] A court has the right—indeed, it is its duty—to maintain decorum in the courtroom when a trial or other judicial proceeding is under way therein, and, of course, may to that end require all present to remain orderly and quiet, and in ordering the individuals named' not to carry on a conversation in the courtroom while the trial was in progress, the judge did nothing more than what it was his duty to do to preserve proper demeanor on the part of those in attendance upon the trial and thus the dignity with which trials and proceedings in courts of justice should always be conducted. It is not, however, pointed out by counsel how or in what way, if at all, the defendants were prejudiced by the action of the court in ordering and requiring Federoff to depart from the courtroom, and, from the record itself, as it is presented here, we cannot say that prejudice to defendants followed from the circumstance. Federoff was not present when the accident occurred, so he could have been of no assistance to his attorney in the latter’s examination and cross-examination of the witnesses as to that matter. He was later called into the courtroom and testified to statements alleged to have been made by Mrs. Pedrow after the accident inconsistent with her testimony as to how it happened. Besides, there was no jury to be prejudiced by the action of the court, if, indeed, such a circumstance would or might have the effect of causing prejudice to arise in the minds of the intelligent and fair-minded men and women of whom it is to be presumed trial

There are some other criticisms of the record, but in these, as in other assignments to which attention has herein been given, there is no substantial merit.

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 April 17, 1926, and the following opinion then rendered thereon:

Two points are urged for a rehearing of this cause. [10] The point first made in the petition was practically considered and disposed of in the original opinion. It is this: That the testimony of Mrs. Pedrow is, upon its face, plainly incredible and that, in deciding the case, the trial court should have attached to it no weight whatsoever and that, in giving it credit, as presumptively it did, it abused its discretion. It is to be conceded that Mrs. Pedrow made one statement while testifying which does not bear the earmarks of truth, and that was that, while in the act of alighting from the cab, she at the same time handed to the driver, still sitting in the taxi and at the wheel, the fare for conveying her and her daughter to

[11] The second point stressed by counsel in support of the petition here is that the court erroneously refused to receive testimony the particular object of which is not disclosed by the record, but which counsel declares in his-briefs and the petition here would have the effect of impeaching the testimony of Mrs. Pedrow—that is, that it would show that she had at some other time made statements as to the manner in which or the circumstances under which the accident occurred which were in material particulars inconsistent with her testimony before the court. One L. B. Smith was called by defendants for iliat purpose, and the following thereupon occurred: Q. (By counsel for defendants) : “Mr. Smith, were you in the party that went over in front of Mr. Federoff’s place some time the latter part of May, on the evening when Mr. Federoff and myself were there?

The petition for a rehearing must be denied, and it is so ordered.

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