Rosander v. Market Street Railway Co.

This is the same action under consideration in Rosander v. Market Street Railway Co. et al., ante, p. 710 [ 265 Pac. 536 ], As disclosed in the opinion rendered, the judgment was against all of the defendants, and separate appeals were taken. This is the appeal of all the defendants other than Market Street Railway Company, a corporation.

The trial of the action was a three-party controversy. The plaintiff, admittedly without negligence, charged her in

The appeal presents two general claims. The first contention involves the liability of any of the defendants; the second contention, admitting the liability of the truck owners, is that defendant Golden Gate Building Materials Co. (a corporation), was not the owner of the truck nor the employer of the driver, and that there was no privity of contract or other relationship sufficiently shown to fasten any liability on said corporation.

As the facts are few they may be repeated here. Plaintiff, on the morning of the day in interest, was leaving her home near Scott and Page Streets, in the city of San Francisco, at about 8:30 A. M. Almost immediately upon reaching the sidewalk, she heard a crash and saw in the street a collision between a street-car and a large truck, and almost in the instant she saw the truck moving toward her. She fled for safety to the house, and the truck overtook her, knocking her down right at the threshold and inflicting her injuries. It was a large five-ton truck heavily loaded and being driven by one Palamountain.

The ease was tried upon the theory that the street-car in question was traveling at a high and excessive rate of speed down Page Street, and that the truck, at an excessive and unlawful rate of speed, was coming along on Scott Street; that, due to the unlawful speed of both the streetcar and the truck, a collision occurred at the intersection.

' We deem this statement of facts will serve the present discussion.

Appellants raise two points that may be disposed of at the outset. First, it is contended that the evidence is insufficient to support the verdict and judgment against these appellants. This is the language of appellants’ brief: “We will set forth the material portions of each witness’ testimony, with the exception of the witnesses offered by the railroad company. If the jury accepted the railroad’s witnesses it could not have rendered a verdict against the railroad. If the respondent relies on the testimony of the railroad company’s witnesses, of course she must concede

This is about all that need be said on the subject of the sufficiency of the evidence. The argument is not strong enough to call forth a reply thereto. We have, however, examined the entire record and find sufficient evidence to support the verdict.

Appellants also argue that the damages allowed were excessive to the extent of appearing to have been given under the influence of passion and prejudice.

In Mohn v. Tingley, 191 Cal. 471 [ 217 Pac. 733 ], the court again approves the rule as laid down in Hale v. San Bernardino Valley T. Co., 156 Cal. 713 [ 106 Pac. 83 ], as follows: “The amount of damages is committed first to the sound discretion of the jury and next to the discretion of the judge of the trial court who, in ruling upon the motion for a new trial, may consider the evidence anew, determine anew the facts, and set aside the verdict if it is not just. Upon appeal the decision of the trial court and the jury on the subject cannot be set aside unless the verdict is ‘so plainly and outrageously excessive as to suggest at the first blush passion or prejudice or corruption on the part of the jury. ’ ”

From a review of the record before us we do not feel that the damages are so grossly excessive as to warrant the conclusion that passion or prejudice entered as an element in the jury’s determination. The plaintiff, a young married woman, was run down by a loaded truck of a total weight of 23,000 pounds. The resultant injuries were what would be expected save that she was not killed outright. We deem it unnecessary to catalog in detail all of the injuries sustained by her. That she was most seriously injured admits of no question. The injuries are of a permanent character to the extent that, whatever slight improvement may follow, she will remain an invalid. As the result of the accident she has been completely unsexed and the capacity to bear children has been destroyed. All of her main organs now function without nerve supply and in an inefficient manner. It would be and is a delicate question, and to here enumerate each separate disarrangement would be

Appellants’ other grounds of appeal are alleged errors in the court’s action in giving and refusing certain instructions to the jury and in the admission and rejection of evidence.

On the question of the right of way, the court instructed the jury as follows: “As said by our Supreme Court, the street-car cannot go upon the street except upon its rails, and hence it has the better right to that space, to which others must yield when necessary. It is the settled law of this state that the street-car has, and from the necessity of the case must have, a right of way upon that portion of the street upon which alone it can travel and which it cannot leave paramount to that of persons and ordinary vehicles. This superior right is not exclusive, and does not prevent others from driving on or passing along or across its tracks at any time or place when by so doing it will not materially interfere with the progress of its cars.”

Appellants concede the correctness of the instruction as far as travel between blocks may be involved. It is urged, however, that at intersections the rule has no application. Much authority is cited in support of this contention. We do not feel the necessity of analyzing and distinguishing all of the cases upon the subject. The street-car has no opportunity of leaving the tracks while passing through an intersection, and at least to that extent the reason for the general rule holds good at crossings. We. decline to go further into the question for the reason that whatever conclusion we might reach on the alleged error in the instruction, it could have no bearing on the determination of this appeal. It has no relation to the negligence of the truck driver, and, as the facts of the case show and the finding of the jury is that the truck in question was driving to and through the said intersection at a speed prohibited and in itself negligent, the fact that the railway company may have been likewise negligent in no way excuses the truck driver. In the face of

Appellants content themselves with pointing out the alleged unsoundness of the instruction but make no reference to any harm or prejudice resulting to them therefrom. The jury were further instructed upon the same subject, and were told that neither the street-car nor the truck had any exclusive right to the use of any part of the street, but that the rights of each were and are reciprocal to the extent in the questioned instruction stated; and the jury were further instructed that, in operating the street-car along the street in question at the time and place of the accident, it was the duty of the motorman of the street-car to use ordinary care not to collide with any automobile on the highway. Taking the instructions together, we think the jury was fully and fairly instructed. (Bailey v. Market St. Ry. Co., 110 Cal. 320 [ 42 Pac. 914 ]; Arnold v. San Francisco etc. Ry. Co., 175 Cal. 1 [ 164 Pac. 798 ]; Armock v. United Railroads of San Francisco, 56 Cal. App. 160 [ 204 Pac. 856 ]; Haber v. Pacific Electric R. Co., 78 Cal. App. 617 [ 248 Pac. 741 ].)

In Cal. Jur., vol. 23, p. 881, it is stated: “The duties of a motorman on approaching an intersecting street and of a pedestrian or driver of a vehicle about to cross the tracks are reciprocal, except in the particular that, because the car is confined to its tracks, vehicles and foot passengers must give way to its clear passage.”

The court instructed the jury as follows: “I further charge you that said Motor Vehicle Act also provided, at the time of the happening of the accident, that it was unlawful for the driver of a vehicle equipped with other than pneumatic tires to drive such vehicle upon a public highway at a speed greater than or in excess of 10 miles an hour where the gross weight of the vehicle and its load was over 22,000 pounds.”

The contention of appellants is that, conceding the provisions of the Motor Vehicle Act (Stats. 1923, p. 517, as amended), to be as stated, these provisions were enacted for the protection of the roadbed itself and for no other purpose.

Adopting appellants’ language, the contention is thus given: “The provision of the Motor Vehicle Act with respect of speed at which vehicles equipped with solid tires may be operated were not enacted with the idea of protecting other traffic, either vehicular or pedestrian. These provisions are solely for the protection of the roadbed.”

Appellants then cite sufficient authority to the proposition that where a violation of statute is not a violation of any duty owed plaintiff she cannot recover. (Corbett v. Spanos, 37 Cal. App. 204 [ 173 Pac. 769 ]; Figone v. Guisti, 43 Cal. App. 609 [ 185 Pac. 694 ].) There is nothing in the Motor Vehicle Act to suggest that these regulations of speed according to weight and tire equipment were intended solely for the protection of the roadbed. We cannot take judicial knowledge of the fact, if it be a fact, that a truck with solid tire wheels and loaded to 22,000 lbs. will be more harmful to the roadbed than a truck of equal load with pneumatic tires. We have no evidence on the subject. If we are to hold that these so-called “weight and equipment” speed limits were enacted solely as a protection to the roadbed, we would then be left with no regulation governing speed of heavy loaded trucks as applicable to general traffic except such regulations as govern the ordinary touring car. Obviously this can hardly be the intent of the lawmakers. At the time of the accident in question here, the speed limits for all cars appeared under title IX of the Motor Vehicle Act, sections 112-145, inclusive. Title VIII, sections 83 to 111, inclusive, deals with the use of the highway and gross weights of trucks and size and character of tires. When the language of a statute is plain and unambiguous, courts are not called upon to determine the wisdom

The court instructed the jury with reference to the duty of the driver of the. truck to operate his vehicle upon the right-hand side of Scott Street and at the speed prescribed. Appellants complain that these instructions were upon matters not in issue inasmuch as the negligence charged was limited to the intersection, and the conduct of the driver before reaching that portion of the street was immaterial and could in no way have contributed to the accident. We find no merit in the contention.

The court instructed the jury as follows: “Before the plaintiff can recover in this action it must first appear by a preponderance of the evidence that the defendants, or their servants, were guilty of some act of-negligence which contributed proximately to the accident.”

Appellants complain that this instruction permitted the jury to return a verdict for plaintiff if any act of negligence on the part of the truck driver was proven, without regard to the scope of the complaint. However, a further instruction was given that plaintiff could not recover unless she proved by a preponderance of the evidence all the material allegations of her complaint with reference to the alleged conduct of defendants. We see no serious error in the instruction. Obviously it was intended as a general preliminary instruction and was a correct statement in the

This covers appellants’ claims of error on instructions given. There are other specifications of error predicated on instructions given that we deem do not deserve discussion. We find these last to be without merit of any kind, exclusive perhaps of novelty.

The appellants complain that the trial court erred to their prejudice in refusing to give certain instructions requested by them. The court refused to instruct the jury that the mere fact that the truck and the street-car collided did not afford the slightest evidence that the collision was caused by negligence on the part of the truck driver. Likewise, the court refused to tell the jury that the mere fact that the truck ran upon or was forced upon the sidewalk and struck and injured plaintiff did not furnish the slightest evidence of the truck driver’s negligence.

As hereinbefore noted, the court did instruct the jury as to the burden of proof, and further instructed the jury as follows: “It is not sufficient for plaintiff to establish that she received injuries and that she received them through being struck by defendants, but plaintiff must further prové that the accident and resulting injuries were proximately due to the negligence of the defendants.” The jury were also told that there was no legal presumption of negligence, and that plaintiff must prove by a preponderance of evidence that the accident was proximately due to negligence of defendants.

The jury were fully and correctly instructed, and the mere fact that the trial judge declined unnecessary repetition affords appellants no ground for reasonable complaint. Without citation of authority it may be almost dogmatically stated that parties litigant cannot demand that the law, as given to a jury, be phrased in language chosen by themselves regardless of how otherwise given. Further, it seems that the mere presence of a five-ton truck on the sidewalk

The court refused an instruction based upon the presumption of law that a person is innocent of wrong and that the law has been obeyed. Under the case of Olsen v. Standard Oil Co., 188 Cal. 24 [ 204 Pac. 393 ], the instruction might properly have been given. However, ample facts appeared to render unnecessary a recourse to presumption, and we think the instructions given by the court were ample to insure against any imagined harm from the refusal to instruct as requested on these matters.

The appellants complain of the court’s refusal to instruct the jury, as requested by them, on the question of right of way. This point has been sufficiently covered hereinbefore in discussing the instructions given.

We repeat, that even if there was merit in appellants’ contention, no harm results to them in the face of their own negligence. The main issue here was the speed of the streetcar and of the truck. If both were violating the law in this respect plaintiff is not forced to determine which should have yielded, but is entitled to her recovery against both.

Appellants next urge error in the trial court’s refusal to instruct as to the truck driver’s right to presume that all other persons, street-cars, etc., using the streets would obey the law. The court did instruct the jury that it was not negligence to fail to anticipate the violation of law by any person, and at these appellants’ request instructed the jury that operators of vehicles have a right to expect that those in charge of street-cars will operate them in the manner and run them at the speed which is customary at the particular place, and that they will give the usual warnings and signals, and use at least ordinary care to avoid injury to others. (See Rush v. Lagomarsino, 196 Cal. 308 [ 237 Pac. 1066 ]; Truitner v. Knight, 83 Cal. App. 655 [ 257 Pac. 447 ].)

Appellants complain of the court’s action in the modification of a requested instruction. The point raised has been elsewhere disposed of herein.

The foregoing disposes of the instructions. Appellants urge further that the court erred in its rulings on the admission arid rejection of testimony.

Lastly, the appellant, Golden Gate Building Materials Co., a corporation, attacks the verdict and judgment as unsupported on the issue of its connection with the truck or the driver thereof.

The truck in question was owned by McDaniel and Barrymore, a copartnership. At the time of the accident it was being operated by one Ray Palamountain, and was loaded with gravel which was being hauled for Golden Gate Building Materials Corporation. In order that we may better view the exact relationship between the copartnership and the corporation, with reference to the question, we will outline the facts:

Barrymore and McDaniel were copartners. These gentlemen were men of little means and unable to fully finance their operations. They purchased, upon contract of conditional sale, a number of trucks and entered into a contract with the corporation for the hauling of materials. When they took the hauling contract they entered into a contract with the corporation whereby it was agreed that within a period of three years the corporation could buy the trucks from them. In other words, the corporation had an option to take the trucks if they wanted them, and incidentally this option was exercised after the date of the accident. At the time of the accident, Barrymore, one of the partners, was the sales manager for the corporation, and after the transfer of the trucks he remained as vice-president of the corporation. The office of the copartnership was at the same address as the office of the corporation, and the directing foreman of the corporation was one Jones. The driver, Palamountain, reported to Jones daily and from him received his orders for the day. The truck here involved had painted upon it

From these facts—which' were the facts presented by appellants themselves—certain prominent features appear. There was some privity of relationship between the partnership and the corporation evidenced by the contract as to the purchase of the trucks by the corporation. Speaking generally, it is unlawful for one holding personal property under a conditional sale to transfer or sell the same. To the extent that the corporation did hold an option to purchase the trucks of the copartnership, it is apparent that it had some interest therein, unlawful perhaps, but nevertheless enforceable as between the parties themselves. This relationship between the appellants is further manifest in the fact that one of the partners, Barrymore, was sales manager for the corporation, and that the corporation and copartnership occupied the same office. The truck being used exclusively in the business of the corporation, and the corporation having this option to purchase from the co-partnership, it may readily be inferred that the original purchase by the copartners was solely for the purpose of doing the corporation hauling. The fact that when the corporation took over the trucks under its option of purchase, or thereabouts, the copartnership was dissolved and the former sales manager became vice-president of the corporation likewise has probative effect upon the issues involved. Courts have recognized the difficulty one meets

Appellants’ motion for a new trial was properly denied.

The judgment is affirmed.

Tyler, P. J., and Knight, J., concurred.

A petition by appellants to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on May 3, 1928.

All the Justices present concurred.