Towne v. Godeau

The defendants have appealed from the judgment herein in favor of plaintiff for damages, on account of injuries suffered by him through the negligence of defendants. The jury returned a verdict in the sum of $4,500 and judgment was entered for that amount. The defendants moved for a new trial and the same was denied upon condition that plaintiff consent to a reduction of the judgment to $3,500. Such consent was filed in due time and the amount of the judgment was reduced accordingly.

Eldorado Street in the city of Stockton runs north and ' south and Poplar Street crosses it at right angles. The former is 55 feet 4 inches wide and the latter 39 feet 4 inches. There is a double street-ear line on the former and also on the latter from the intersection west. Measurements taken westerly across Eldorado Street are as follows: From the east curb to the cast rail of the north-bound track 20' 0", thence to west rail 5' 1", thence to east rail of south-bound track 4' 10", thence to west rail 5' 1", thence to west curb 20' 4".

Immediately prior to the accident which resulted in plaintiff’s injuries, a north-bound street-car stopped a short distance south of the intersection to permit passengers to board and alight and the defendant Beauregard, driving a motor hearse belonging to defendant Godeau and also going north, stopped a few feet behind the street-car and to the right of the east track. When the car moved forward again the hearse followed and turned to the west in the intersection. At the time the street-car started forward the plaintiff and a'companion were on the west side of the street, at a point some distance north of the intersection, traveling south on motorcycles, the plaintiff being to the left of his companion. The hearse and plaintiff’s motorcycle collided at a point near the southwest corner of the intersection, resulting in the injuries to plaintiff for which damages are claimed. The complaint alleges negligence on the part of defendants as follows: “That at said time and place, said defendants drove and operated said automobile carelessly, recklessly and negli

[1] From the evidence it clearly appears that the driver of the hearse turned to the left before reaching the center of the intersection. Such violation of the law constituted negligence per se. [2] The defendants, however, pleaded contributory negligence on the part of plaintiff. It is now contended by appellants that the evidence conclusively shows that the plaintiff was guilty of contributory negligence. The jury, in returning a verdict for the plaintiff, and the court, in denying a motion for a new trial, impliedly found in favor of the plaintiff upon that issue. The burden of proof was on the defendants to show contributory negligence. To sustain such burden and to overcome the implied finding of the jury and of the trial court would require very clear proof.

The plaintiff testified that as he was proceeding south, on the west side of the street, at a speed of fifteen miles an hour, “there was a street-car ahead of me in an angling way and a machine behind it. I guess there was, because when the car came head-on, the machine came behind it and just hit me. . . . The street-car hid the hearse from my view. . . . The hearse was going west. ... I did not see it until it got by the street-car. ... It was right on me before I had a chance to turn. ... I was looking ahead. I did not expect anything coming from that direction. ... It hit me. ... I didn’t hit it.” The witness further testified that he was on the south car track on Poplar Street when he first saw the hearse. His companion gave similar testimony as to the movements of the respective vehicles. He testified that his speedometer showed that he and the plaintiff were traveling at fifteen miles an hour. He escaped injury by running his motorcycle over the curb and on to the sidewalk. Other witnesses testified that the motorcycles were going twenty-five miles or more an hour. Witnesses estimated the speed of the hearse at from four to ten miles an hour. When the hearse was brought to a stop it was headed southwest. The driver of the hearse testified that when he was “about half

Whether the plaintiff was guilty of contributory negligence, under the circumstances shown by the evidence, was clearly a question for the jury. [3] While nearing and entering the intersection, ordinary care required plaintiff to look to the left for approaching vehicles. Having satisfied himself of the absence of danger from that direction, it was natural for him to look to the right for east-bound vehicles. He had the right to assume that no vehicle would approach him from the left beyond the medial line of the intersecting street. Of course, this does not mean that he had the right to proceed blindly, in reckless disregard of obvious danger, for it was his duty to exercise ordinary care, even though the negligence of another caused the danger. [4] In this connection the court instructed the jury that the plaintiff “had a right to assume that any person driving from the south on Eldorado Street and desiring to turn to the left or west on Poplar Street would obey the law and run beyond the center of the intersection of said streets passing to the right thereof, before making such turn.” Appellant contends that the effect of this instruction upon the minds of the jurors was “that the plaintiff did not and was not required to see that which he could have seen with the exercise of ordinary care.” There is no merit in the contention. Two instructions proposed by defendants, and following immediately after the one quoted, told the jury in effect that even if the driver of the hearse violated the law in turning into Poplar Street, still the plaintiff could not recover if the exercise of ordinary care on his part would have prevented the accident.

[5] It was admitted at the trial that defendant Beauregard was in the employ of defendant Godeau at the time of the accident. The court instructed the jury at plaintiff’s request: “If you are satisfied from the evidence that at the

[6] The court instructed the jury that if the driver of the hearse turned to the left in violation of the law “that in itself establishes negligence . . . and it is not necessary that the plaintiff make any further showing of negligence in defendants in order to recover, if you find that such negligence was the approximate cause of the injury sustained by the plaintiff.” Complaint is made that this instruction also omits the element of contributory negligence. Appellants cite, in support of their contention, the case of Stephenson v. Southern Pac. Co., 102 Cal. 143 ,149 [ 34 Pac. 618 , 621, 36 Pac. 407 ]. In that ease the court instructed the jury: “If the jury believe from the evidence that the defendant was guilty of negligence as charged in the complaint, and that the plaintiff was injured thereby, your verdict should be for the plaintiff.” The instruction was held to be erroneous in that it “entirely ignores the question of contributory negligence on the part of plaintiff.” 'When, as in the case cited,- an instruction purpprts to state the elements which will justify a verdict, no necessary element should be omitted therefrom. None of the foregoing instructions, however, purport to state all of such elements. Another instruction was given by the court which did purport to state the elements which would justify a verdict for plaintiff, and in that instruction the element of contributory negligence ‘was not omitted. In at

[7] Complaint is made of the court’s refusal to give the following proposed instruction: “If you believe from the evidence in this ease that the plaintiff Robert Towne was farther from the point of intersection of their paths than the defendant Beauregard, then it was the duty of said Robert Towne to yield the right of way to said Beauregard.” The accident occurred on the eighth day of April, 1922. The Vehicle Act of 1915 was then in force. (Stats. 1915, p. 397.) Section 20 of the act as amended in 1919 (Stats. 1919, p. 215), in so far as applicable, reads as follows: “(f) . . . The operator of a vehicle shall yield the right of way at the intersection of their paths to a vehicle approaching from the right unless such vehicle approaching from the right is further from the point of the intersection of their paths than such first named vehicle. . . . (i) All vehicles approaching an intersection of a public highway, with the intention of turning thereat shall in turning to the right keep to the right of the center of such intersection, and in turning to the left shall run beyond the center of such intersection, passing to the right thereof, before turning such vehicle toward the left.” The proposed instruction is manifestly erroneous. It states, in effect, that even though the driver of the hearse had violated the law by driving on the wrong side of the street, this very violation of the law gave him the right of way over the plaintiff, who was on the proper side of the intersecting street, because it brought him closer to the point of intersection of his unlawful path with the lawful path of the plaintiff. To so hold would be to place a premium upon “cutting corners.” Where one person has so violated the law, the circumstances may be such, of course, in case of an accident, as to show contributory negligence on the part of the other party to the accident or to require the application of the doctrine of the last clear chance.

[8] Upon the measure of damages the court gave an instruction in the language of one approved in Hersperger v. Pacific Lumber Co., 4 Cal. App. 460 , 467 [ 88 Pac. 587 , 591], and in Lonnergan v. Stansbury, 164 Cal. 488 , 493 [ 129 Pac. 770 , 772], In the latter case it is said: “The

In the same instruction the court told the jury that if the plaintiff was entitled to recover he should be awarded ‘ ‘ compensation for all expenses actually paid or incurred for medicine and doctor’s bills and hospital and nurse’s bills, not exceeding the amount claimed therefor in the complaint.” Appellants argue that the plaintiff was entitled only to a reasonable sum for such expenses, but not necessarily the amount actually paid therefor. At the trial it was stipulated by counsel for defendants that “the hospital bill was $664.19” and neither party introduced any proof upon the amount of the bill or the reasonableness thereof, or in any way questioned the same. Appellants cannot now be heard to say that the proof is lacking upon that issue. The undisputed testimony shows that the reasonable value of the doctor’s services was the sum of $1,500, but that he charged but $800' therefor, the amount alleged in the complaint.

Conceding that the words “reasonably probable” in the foregoing instruction are inaccurate and may have tended to mislead the jury, the amount of the judgment is so small that the court cannot say that the error has resulted in a miscarriage of justice. Deducting from the judgment the item of $800 for the doctor’s bill and the stipulated sum of $664.19 for hospital expenses leaves but a little over $2,000 as the amount awarded for pain and suffering and permanent injuries. The attending physician testified that

The judgment is affirmed.

Hart, J., and Plummer, 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 February 5, 1925.

All the Justices concurred.