Purcell v. Goldberg

Plaintiff brought this action to recover damages for personal injuries sustained when her automobile was struck and overturned by one owned by the defendant Goldberg and driven with his consent by the defendant Caler. The action was tried before a jury, and a verdict rendered in plaintiff’s favor and against both defendants for $2,840.50.

The accident happened about 9 o’clock at night on a wide curve on Market Street extension in the vicinity of Twin Peaks in San Francisco. The highway in that locality is built on a grade, and divided by a white line into two traffic lanes. Caler, accompanied by a young lady companion, was ascending the grade, traveling up the inner lane at a speed of about thirty-five miles an hour, and following closely behind another car. As he was about to round the curve and when approximately ten feet distant from respondent, who was descending the grade traveling down the outer lane at a lawful speed, he suddenly shot from behind the car he was following, headed across the highway, and struck the tire on the left rear wheel of respondent’s ear, causing it to overturn three times. Meanwhile Caler’s car continued on and across the highway and crashed into an electric light transmission pole, breaking the pole. The doctor at the emergency hospital to which the injured parties were taken immediately following the accident testified that Caler’s breath was more or less alcoholic; but Caler claimed at the trial that it was the result of having eaten three brandied peaches with his dinner.

The first point urged in support of the appeal is that the accident was unavoidable. The contention made in this behalf is based on Caler’s uncorroborated testimony that while rounding the curve he attempted to flick the ashes from the cigarette he was smoking, out of the partly opened window on his side of the car; that the ashes blew back into his eyes, temporarily blinding him and causing him to lose control of his ear; and that he was not aware of the fact that he had collided with anyone until after he had crashed into the electric light pole. Manifestly, however, the question of the truth of the explanation so offered by him for having driven out of line and across the highway at that particular point was one exclusively for the determination of the jury. In other words, the issue of unavoidable accident raised by his testimony was submitted to the jury by appellants under appropriate instructions proposed by them, and the jury as sole judge of the evidence, the credibility of the witnesses and the weight to be given to their testimony, found adversely on that issue; and in view of all the existing conditions shown

In establishing Caler’s condition at the time of the accident it was disclosed incidentally that his companion (who was not called as a witness) had not dined with him that evening, but that she too had an alcoholic breath; and appellants assign the admission of the testimony as error. It is quite evident, however, that in deciding the issue of unavoidable accident Caler’s veracity as a witness as well as the extent of his alcoholic condition at the time he collided with respondent became of vital importance; and as declared by subdivision 3 of section 2061 of the Code of Civil Procedure, “ ... a witness false in one part of his testimony is to be distrusted in others”. It would seem, therefore, as respondent contends, that the facts revealed by the disputed testimony related to matters the jury was entitled to weigh in determining whether, contrary to the story told by Caler, his alcoholic breath was caused by something stronger than three brandied peaches. In any event, and regardless of the purpose for which the testimony was offered, it is doubtless the law that in an action such as this, to recover damages based on alleged negligence, a plaintiff is allowed to prove and the jury should consider all of the circumstances present at the time of the happening of the accident (Craig v. Boyes, 123 Cal. App. 592 [ 11 Pac. (2d) 673 ]), which here would include the condition of both occupants of the car that caused it.

Appellants next complain of the giving and refusal to give numerous instructions; but we find nothing in the points so made which calls for reversal. The first two instructions challenged used the words “proximately contributed” instead of “proximately caused”. It appears, however, that the term “proximate cause” was clearly defined in other instructions and the jury fully advised as to the law relating thereto; consequently no error is shown. (Miner v. Dabney-Johnson Oil Corp., 219 Cal. 580 [ 28 Pac. (2d) 23 ].) Objection is made also to two instructions upon the ground that they were “formula” in character and omitted any reference to the defense of contributory negligence. We are satisfied that the omission complained of was not prejudicial.

The next point urged relates to the question of special damages. In this regard the record shows that at the opening of respondent’s direct examination it was brought out that she was a public school teacher, married, and living with her husband; but the fact that she was a married woman was nowhere stated in the complaint; nor did she join her

The amount of general damages awarded by the jury was fixed apparently in the sum of $2,000; and appellants’ final contention is that the sum allowed is excessive. It is well settled, however, that this is a question that is committed largely to the discretion of the trial court and that its determination thereof may not be set aside on appeal unless it appears that the award is so disproportionate to the injuries received as to indicate that the award was the result of passion, prejudice or corruption of the jury. (Formosa v. Yellow Cab Co., 31 Cal. App. (2d) 77 [ 87 Pac. (2d) 716 ].)

The judgment is therefore affirmed.

Ward, J., and Peters, P. 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 October 23, 1939.