MacPherson v. West Coast Transit Co.

This action was brought to recover damages for injuries to the person and property of the plaintiff alleged tg have been caused by the negligent operation of an automobile stage by defendant company. The latter denied that the injuries were caused by its acts or negligence, and alleged as a further defense the contributory negligence of the plaintiff.

The jury found for the plaintiff in the sum of two thousand five hundred dollars, and from the judgment entered on the verdict the defendant has appealed.

It is contended that the evidence was insufficient to support the verdict, and that the conduct of the jury and of counsel for the plaintiff was prejudicial to the rights of the defendant and prevented it from having a fair trial.

The accident occurred at a point on the public highway between Korbel and Blue Lake, in Humboldt County. The plaintiff, accompanied by Mrs. Hattie McDaniel, was driving his automobile—a Buick roadster—toward Korbel, and at the point where the accident occurred met the automobile stage owned and operated by the defendant. The road at this point passes around a hill which on the left, approaching Korbel, forms a steep bank. On the right a fence had been erected to prevent automobiles from leaving the highway, which is approximately one hundred feet above the floor of the valley and the descent to which from the said road is precipitous. As this portion of the road came into view the plaintiff, as he testified, observed the approach of the stage, which was preceded by a horseman. The stage was then traveling behind the horseman but on plaintiff’s side of the road. The driver of the stage, instead of turning to his right and remaining behind the horseman until the plaintiff had passed, continued on his course, passed the horseman on the left and thereupon turned the stage sharply and suddenly toward the bank. By this movement the stage was placed diagonally across the road in such a position that the plaintiff was unable to pass without striking the vehicle. According to his testimony the stage when first seen was traveling about thirty miles per hour; he immediately sounded his horn and applied the brakes,

The defendant claimed that no collision occurred between the two vehicles and that the accident was due solely to the negligent driving of the plaintiff. The testimony of the latter, however, was corroborated in all material respects by that of Mrs. McDaniel, who also testified to a collision with the stage before the plaintiff’s car passed through the fence and down the hillside.

A view of the scene of the accident was ordered by the court, it being stipulated by counsel that travel at that point should be stopped while the jury was present. The court assented to the stipulation, and, among other instructions, admonished the jury with respect to the situation at the scene of the accident as follows: “I think it is better for you not to discuss it among yourselves.” Testimony contradicting plaintiff’s version of the affair was adduced by the defendant; but it will be sufficient to say that the evidence as to the cause of the accident was conflicting, and the facts as related by the plaintiff and his witnesses, which the jury believed, were not improbable. Moreover, as stated, the jury, after hearing the testimony, viewed the scene of the accident, and knowledge so gained was independent evidence to be taken into consideration in determining the issues in the case (People v. Milner, 122 Cal. 171 , 184, 185 [ 54 Pac. 833 ] ; People v. Pompa, 192 Cal. 412 [ 221 Pac. 198 ]; Hatton v. Gregg, 4 Cal. App. 537 [ 88 Pac. 592 ]; Vaughan v. County of Tulare, 56 Cal. App. 261 [ 205 Pac. 21 ]), and a review of the evidence shows that their conclusion that the damage complained of resulted solely from the negligence of the defendant was sufficiently supported.

Defendant moved for a new trial, alleging, among other grounds, misconduct of the jury and of counsel for the plaintiff. In support of the motion affidavits were filed by defendant’s counsel to the effect that, notwithstanding the

The view was within the discretion of the trial court (Code Civ. Proc., sec. 610), which in the present case was not abused nor was the admission of the McDaniel complaint as evidence corroborating the witness MacPherson and tending to rebut the inference that the object of the transfer was to avoid a claim for damages against the plaintiff, erroneous. The evidence being before the jury, references thereto by counsel in his endeavor to convince them that the transfer mentioned was for a purpose other than that claimed by the defendant were proper.

In passing upon the motion for a new trial it must be presumed that conflicts between the affidavits filed were resolved by the court in favor of the plaintiff, and its implied findings thereon cannot be disturbed (Ham v. County of Los Angeles, 46 Cal. App. 148 [ 189 Pac. 462 ].) Moreover, in denying the motion the court impliedly determined that no prejudice was suffered through the alleged misconduct of either counsel or the jury (LaFargue v. United Railroads, 183 Cal. 720 [ 192 Pac. 538 ]). The affidavits made and filed by defendant’s counsel in support of the motion did not disclose the conversations had between the jurors, nor did affiant claim to have heard all that was said. He states, however, that he knew that the jurors did discuss the facts of the case at the scene of the accident, to which he called the attention of the court at the time and, further, that he “observed said jurors scattered and separate over the scene of said accident, some of the jurors being

After an examination of the entire record we are satisfied that the verdict, together with the implied findings of the trial court on the motion for a new trial, were fully sustained, and no error is shown which reasonably supports the conclusion that the matters complained of were prejudicial or that the trial resulted in a miscarriage of justice.

The judgment is affirmed.

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