Potter v. Driver

Respondent brought this action for damages for alleged injuries sustained by him when he was struck by an automobile operated by appellant. The trial was before a jury, and judgment was entered in favor of respondent for $3,750 against appellant only, the ease having been dismissed as to the other defendant. From

Substantially the facts are as follows:

On the sixth day of June, 1925, at about the hour of 8:30 P. M., plaintiff was crossing Nineteenth Street, in an easterly direction, at its intersection with J Street, in the city of Sacramento. While proceeding across Nineteenth Street on the crosswalk used by pedestrians he was struck by an automobile driven by defendant, knocked down, and injured. J Street runs in an easterly and westerly direction and Nineteenth Street in a northerly and southerly direction. At about the same time that respondent started across Nineteenth Street, appellant, driving north on said Nineteenth Street, had come to a stop at the south line of the intersection of. J and Nineteenth Streets, to wait for two street-cars to pass from in front of him on J Street, one of said street-ears going north on said J Street and the other south thereon. That when the passage of said street-cars permitted, appellant drove across the intersection of said streets, and when he arrived at the said crosswalk along the north line of the intersection of said streets his automobile struck respondent. The only eye-witnesses to the accident were respondent and appellant. Respondent testified that before starting across said street he looked both ways for approaching automobiles, but saw none, and that he continued to look until the moment of the accident. That he first became aware of the approach of appellant’s automobile when he saw its headlights just an instant before it struck him. Appellant testified that when the street-cars permitted him to proceed he drove straight across the said intersection at a speed of not exceeding five miles an hour. That he did not see respondent and was not aware that he had struck him until he felt a light jar of his automobile. That when he felt the jar, he immediately stopped, and on getting out of' Ms automobile found respondent on his hands and knees about a foot in front of his car trying to get upon his feet.

Appellant urges four grounds for reversal of the judgment, namely: 1. Insufficiency of the evidence to justify the verdict; 2. That said verdict is against law; 3. Excessive damages appearing to have been given under the influence of passion or prejudice; 4. Errors in law occurring at the trial and excepted to by defendants.

In the case of Rush v. Lagomarsino, 196 Cal. 308 [ 237 Pac. 1066 ], the court said: “The driver of an automobile has no right to assume that the road is clear under all circumstances and at all times, and he must be vigilant and must anticipate the presence of others.” (Meyers v. Bradford, 54 Cal. App. 157 [ 201 Pac. 471 ].) Foot-passengers and those driving vehicles have equal rights in the public highway, and both are required to exercise that degree

The jury, under the circumstances surrounding the accident, had the right to infer that had the appellant looked ahead of him as he crossed the intersection, he would have seen respondent as he proceeded to cross Nineteenth Street, for it is apparent that respondent must have passed in front of appellant’s automobile, as he was struck by the right front fender. Nor, in the opinion of this court, was the respondent guilty of contributory negligence as a matter of law. On the contrary, so far. as the evidence shows, he was upon the street at a point where he had a right to be, and where pedestrians were expected to cross, and did customarily cross said Nineteenth Street, and according to his testimony, in crossing the street he had observed the care and caution for his own safety that an ordinarily prudent man would have observed under the same circumstances. That is to say, at the time he started to cross the said street, he looked both ways for approaching vehicles, and continued so to look until he was struck by plaintiff’s automobile. The question of contributory negligence was, in this ease, clearly a question for the jury, and the jury, by its verdict, having, upon sufficient evidence found, in effect, that respondent was not guilty of contributory- negligence, the verdict upon that question is binding on this court.

Appellant contends that the court erred in refusing to give to the jury the following instruction: “Defendant’s instruction No. 4. The court instructs you that observation of ordinary care by a pedestrian who undertakes to cross the street is not fully performed by merely looking to the right or left as he steps upon the street, but the observance of that care is imperative upon him during all the time he is crossing. Therefore, if you find that the plaintiff looked only once to the right or south when entering upon Nineteenth street, and then continued to cross the street without making further observation, you will find him guilty of negligence and your verdict will be in favor of the defendant.’’ The court very properly refused to give this instruction. In one important particular it fails to state the law, and that failure consists in omitting to state that before such negligence entitled the defendant to a verdict, the jury must further find that said negligence was the proximate cause of the injury to respondent, that it directly contributed to such injury. (Rush v. Lagomarsino, supra; Bassler v. Sacramento Gas & Electric Co., 158 Cal. 514 [Ann. Cas. 1912A, 642, 111 Pac. 530 ].)

Appellant also contends that the court erred in permitting respondent to testify that when he was informed by his physicians that as a result of the accident he had water on his knee, he was worried and mentally distressed through fear that he might not again be able to walk. We are of the opinion that as tending to show the effect the injuries suffered by respondent had upon him mentally, this evidence was admissible. In the case of Boa v. San Francisco-Oakland T. Rys., 182 Cal. 93 [ 187 Pac. 2 ], the supreme court declared the law to be as follows: “Unquestionably the physical.and mental condition of plaintiff resulting from the accident was material, and mental suffering occasioned by any reasonable apprehension of future disability or deformity resulting

Appellant further claims that the damage was excessive, appearing to have been given under the influence of passion or prejudice. It appears from the evidence that at the time of the accident respondent was fifty-six years of age, was in good health and was engaged in the harness, saddlery, and leather goods business, to which he was giving his personal attention. His injuries consisted of a contusion on his head, injury to right arm, right eye, left knee, back, and big toe on right foot, and other bruises and abrasions; that he was confined to his bed for some two months, suffered a great deal of pain, and at the date of the trial, December 21, 1926, had not recovered from the effects of the injury, his arm, back, and his leg still paining him and rendering him unable to perform the heavy work of his business that he had been accustomed to handling before he received the said injuries; that his injured leg was much weaker than it was before the injury and interfered with his walking, and that his general health had failed by reason of said injuries and the shock his nervous system had received therefrom.

In the case of Zibbell v. Southern Pacific Co., 160 Cal. 237 [ 116 Pac. 513 ], the supreme court laid down what it deemed the correct rule that should be followed by the appellate courts in determining whether or not the damages are excessive, as follows: “That it is only where the verdict is so grossly disproportionate to any reasonable limit of compensation warranted by the facts, as to shock the sense of justice and raise a strong presumption that it is based on prejudice or passion, rather than on sober judgment, that the judge is at liberty to interpose his judgment against that of the jury.” (Martin v. Shea, 182 Cal. 130 [ 187 Pac. 23 ]; Grant v. Los Angeles Transfer Co., 45 Cal. App. 731 [ 188 Pac. 294 ]; Anderson v. San Francisco-Oakland Rys., 61 Cal. App. 21 [ 214 Pac. 289 ].)

In the case of Scott v. Times-Mirror Co., 181 Cal. 345 [ 12 A. L. R. 1007 , 184 Pac. 672 ], the court quoted with approval the following words used by the supreme court in the case of Hickey v. Coschina, 133 Cal. 81 [ 65 Pac. 313 ] : “The court below had the power to, and no doubt did care

We are of the opinion that the verdict of the jury is not so grossly disproportionate to any reasonable limit of compensation warranted by the facts as to shock the sense of justice or raise a strong presumption that it was based on passion or prejudice.

The judgment is affirmed.

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