220 P. 14 | Cal. Ct. App. | 1923
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *688 Mathew D. Brown, while crossing Montgomery Street, in San Francisco, was struck down by a motor-truck negligently driven by an employee of the defendant. Mr. Brown sustained serious injuries which resulted in his death. Plaintiff brought this action as the *689 widow and heir at law of her deceased husband. The cause was tried before a jury, which rendered a verdict in favor of plaintiff for the sum of seven thousand five hundred dollars. From the judgment entered on the verdict defendant appeals, urging as grounds for reversal, (1) that the verdict is excessive; (2) that the injuries were not the proximate cause of the death of decedent; (3) the plaintiff did not have legal capacity to sue; (4) certain instructions, given by the court to the jury, were erroneous.
Mr. Brown's right hip bone was broken. He was taken to a hospital almost immediately after the accident, where he remained until his death. During his enforced inactivity in the hospital, and in spite of attendants moving him as much as possible to counteract the tendency, he contracted congestive pneumonia, a common danger in cases necessitating a recumbent position and inaction. He rallied from this attack, the pneumonia seemingly disappearing. He improved to such a degree that for a month a nurse and an orderly had supported him in getting him out of bed and attempting to develop the use of his injured leg. From this he went to using crutches. While demonstrating to his physician in his hospital room his ability to move with their aid, he suddenly fell backward, striking the back of his neck on a window-sill. He immediately stated to his physician that he was paralyzed; his arms were numb and he was unable to use his legs. An X-ray showed a bone of the neck broken and the spinal cord injured. Within a few days thereafter, having been forced to lie entirely quiet in bed on account of the severe pain attendant on moving him, he again developed congestive pneumonia, and died. The autopsy surgeon of the coroner's office found death was caused by valvular disease of the heart, coupled with an acute congestion of the lungs.
At the time of the accident deceased was a man of fifty-seven years of age; he had, according to his attending physicians, a leaking heart, which compensated; hardening of the arteries and signs of a chronic pleurisy; to all of which the physicians attached little importance as affecting his chances of recovery from the accident which necessitated his hospital care, or of living his allotted span. Counsel stipulated that by the American experience table of mortality *690 the expectancy of life of the average man of fifty-seven years is 16.1 years.
[1] The defendant attacks the verdict of seven thousand five hundred dollars upon the ground that it was excessive, the excess appearing to have been given under the influence of passion or prejudice. (Code Civ. Proc., sec.
Defendant contends that the injuries were not the proximate cause of death. The study of the origin of the doctrine of proximate cause is alluring. Much of interest has been written upon the subject. Space, time, and requirement of the problem before us merely permit hasty reference to its derivation and unfoldment. "He that does the first wrong shall answer for all consequential damages," said Lord Holt in Roswell v. Prior, 12 Mod. 639. In 1773 Chief Justice DeGrey said: "Everyone who does an unlawful act is considered the doer of all that follows" (Scott v. Shepherd, 2 W. Black. 892, 899). Later the courts attempted *691
to limit this responsibility. Lord Kenyon, in Ashley v.Harrison [1793], 1 Esp. 48, pointed out that "the injury complained of was too remote." In 1806 Lord Ellenborough, inVicars v. Wilcocks, 8 East, 1, said that "the damages must be the legal and natural consequences of the words spoken." Sergeant Wild, in Ward v. Weeks [1830], 7 Bing. 211, 212, expressed this idea: "a man is liable only for the natural and proximate consequences resulting directly from some intermediate agent." The principle was stated in America in 1848 by Greenleaf (2 Greenl. Ev., 1st ed., 258) as follows: "The damages to be recovered must always be the natural and proximate consequence of the act complained of." In an early case in this state (Hawthorne v. Siegel,
Illustrative of the application of the rule made by courts of other jurisdictions are the personal injury cases hereinafter mentioned.
Batton v. Public Service Corporation of New Jersey,
Hyvonen v. Hector Iron Co.,
At this juncture it seems pertinent to say that upon reading the instructions given by the court to the jury we note that stereotyped definitions were given of negligence and contributory negligence; and, in this connection, we further observe an instruction was given as follows: "In determining the proximate cause of the death you are instructed that *693 the intervention of a second injury or the intervention of disease, or both, resulting in death, does not necessarily make such intervening injury or disease the proximate cause of the death. It is for the jury to determine whether such intervening causes, if any, are independent causes, or whether such intervening causes are dependent upon another cause which is the efficient cause."
Hartnett v. Tripp,
Ehrgott v. Mayor, etc.,
In Smith v. Northern Pacific Ry. Co.,
In the instant case, by its verdict, the jury found that defendant was guilty of negligence which caused the original injury; that the decedent was free from fault; and also found against defendant upon the issue of the proximate cause of death. Upon all questions of fact submitted for determination the jury's verdict is conclusive. (Sacchi v. Bayside LumberCo.,
To briefly recapitulate, the evidence shows that decedent was injured by being struck by defendant's motor-truck. The use of crutches by decedent while convalescing was a necessity occasioned by the original injury caused by the defendant's negligence. Decedent, while in his room at the hospital, in the presence of his physician, demonstrating his ability to use his crutches "tried to back up, lost his balance," and fell. According to the testimony of physicians, patients using crutches while recovering from injuries frequently have falls, such being an ordinary hazard of convalescence. It was not shown, nor was there any *695 evidence from which it might have been inferred by the jury, that decedent did not exercise ordinary care in using his crutches.
Counsel for defendant concedes that decedent "might not have died (when he did) if he had not been injured and required to move about on crutches." But he endeavors to escape responsibility, arguing that "it was not likely, nor was it proved, that death would not have come had he not been injured by the fall and thereby confined to his bed." Such position is untenable. [3] The party causing the injury cannot escape full liability without showing death must have resulted if the injury had not been done. (Beauchamp v. Saginaw Mining Co.,
[4] We have carefully examined the entire record in this case, and we are of the opinion that the evidence shows a complete case within the doctrine of proximate cause against the defendant, and the jury was fully warranted in so determining.
[5] Defendant's next point is that plaintiff did not have the legal capacity to sue, the objection being made that she sued as the widow and "an heir," or suing as "an" heir, did not join with her other heirs of deceased, either as plaintiffs or defendants, or did not sue for their benefit. Defendant's demurrer was properly overruled on this ground, because it does not appear on the face of the complaint that there are other heirs; and though he again pleaded the same defense in his answer, there was no evidence introduced respecting any other heirs. In Groom v. Bangs,
The last point made for reversal is that certain instructions given by the trial court were erroneous. The instructions given by the court are, in the main, stock instructions given to juries in the trial of damage cases for personal injuries. All of them are "ancient and honorable" and most of them supported by respectable authority. The assignments of error are hypercritical in the extreme, as illustrated by the first. The following instruction was given: "If you find that the plaintiff is entitled to recover, you may award her such damages, within the amount claimed, as, in your opinion, will compensate her for the pecuniary damage proved to have been sustained by her and proximately caused by the wrong complained of. If you come to the conclusion that the plaintiff is entitled to a verdict for damages, then in estimating the amount of such damages I instruct you that the measure of such damages is such sum as will equal the pecuniary loss that it may be reasonably supposed the plaintiff will have actually suffered by being deprived of the services, earnings, society, comfort, and protection of the deceased. But you may not include in such estimate any compensation for the sorrow and distress, if any, which ensued from the death of the deceased, or any pecuniary loss which is remote or conjectural." The action is one under section
[9] It is urged that the court erred in giving the following instruction, designated as number XXIX: "You should estimate and determine the amount that the deceased would, in all probability, have earned in the years yet remaining to him, and, deducting from this the amount which he would reasonably require for his own personal use and maintenance, give a verdict which would pecuniarily compensate her." It is said that error was committed in omitting the word "reasonable" before the word "probability" in line 2 of the instruction. "Probability" means the state or character of being probable. Webster's and the Century dictionaries define "probable" as follows: "Having more evidence for than against; supported by evidence which inclines the mind to belief but leaves some room for doubt; likely." This definition is accepted in numerous cases in *698 which the word "probable" is construed. The Century, in referring to the definition, gives the word "reasonable" as cognate and synonymous therewith. As used in the instruction under examination, we think the word "probability" imports "reasonable."
[10] Objection is made to instruction XXX. The court instructed the jury: "In determining the probable length of life the decedent would have enjoyed, you are entitled to consider the mortality or expectancy tables as evidence bearing on that question." It is said that the court should have added the words "and as tending to show the ordinary experience in like cases." We are unable to see how the clause suggested would have added anything to the instruction. It has been said that instructions must be construed in reference to the proof. (Brumagim v. Bradshaw,
"Mr. Spence: It may be stipulated, may it, Mr. Lipman, that the average man who attains the age of fifty-seven years has an expectancy of 16.1 years to live?
"Mr. Lipman: According to the American Experience Table of Mortality.
"Mr. Spence: Yes, according to the American Experience Table of Mortality."
Under the circumstances we think this assignment of error is without merit. The further objection is made to this instruction that the jury should have been told that the expectancy tables were to be considered only if decedent's death was found to be proximately caused by defendant's negligence. It seems necessary to reiterate: the instructions must be taken, considered and construed as a whole. The instruction criticised is relevant to the measure of damages. The record shows that the court told the jury that the instructions relating to damages were only to be considered if the decedent's death was found to be proximately caused by defendant's negligence.
[11] The last objection is to instruction XXXV, as follows: "You are further instructed that the deceased had the right to cross Montgomery Street at its intersection with Sumner Street." It is argued that this instruction as it stands implies an absolute right in the decedent to cross Montgomery Street irrespective of the rights of others. This *699 instruction, like other instructions criticised, should be read in conjunction with the whole charge of the court, and particularly should it be read in connection with the instruction which immediately precedes it, to wit, instruction XXXIV, which is as follows:
"A public highway is open in all its length and breadth to the reasonable common and equal use of the people on foot or in vehicles. The owner of an automobile has the same right as the owner of other vehicles to use the highway, and he must exercise reasonable care and caution for the safety of others.
"A traveler on foot has the same use to the public highway as an automobile or other vehicle. In using such highway all persons are bound to use reasonable care to prevent accidents. Such care must be in proportion to the danger in each case. The persons having the management of the automobile and the travelers on foot are both required to use reasonable care, circumspection, prudence, and discretion as the circumstances require. Both are bound to the reasonable use of all their senses for the prevention of accident, and the exercise of all such reasonable caution as ordinary careful and prudent persons would exercise under like circumstances."
It will readily be seen that this last assignment of error, like the others which have preceded it, is wholly without merit.
The judgment is affirmed.
Richards, J., and Tyler, P. J., concurred.
A petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on November 15, 1923, and the following opinion then rendered thereon:
Addendum
In the petition for transfer to this court petitioner does not complain of the giving of the instructions set out in the opinion of the district court of appeal, but contends that the verdict is excessive and that the death was not proximately caused by the injury.
These points are satisfactorily determined by the district court of appeal and that court also correctly answers the *700 objections made by petitioner to the instructions set out in that opinion.
We do not wish, however, to be understood as approving those instructions. The measure of damages for injuries to result in the future is well settled. (See sec.
The petition is denied.