60 Cal. 604 | Cal. | 1882
The defendant is the owner of a street railroad in San .Francisco, running on Clay street, between Kearny street and Van Hess avenue. The cars are propelled by means of an endless cable, and to each car is attached a dummy, carrying the gripping apparatus. Seats are arranged on the sides and at the ends of the dummy for the use of passengers. The railroad has two tracks, the northern track being for cars going up the hill from Kearny street and the southern track being for descending cars. On the fourteenth of June, 1880, John H. Cook, plaintiff’s husband, seated himself as a passenger at the lower end of the seat on the south side of the dummy. A two-horse express wagon, driven by one Williams, had crossed the northern track, and was standing on the southern track, at a point about one hundred and fifty-feet from Kearny street, at the time the dummy in question started; the wagon was so cramped that the horses were headed towards the north track, their heads projecting so far over it that the approaching dummy would have struck them, and the rear end of the wagon pointed obliquely down the hill, also towards the northern track.
As the dummy came up to the wagon, two passengers, seated on the southerly seat, jumped over the back of the scat; as the rear end of the dummy came up, a hind wheel of the wagon collided with the dummy, and Cook received injuries from which he died. This action was brought to recover damages, and the jury returned a verdict for plaintiff for eight thousand dollars. Judgment was rendered accordingly, and from that judgment and from the order denying motion for new trial, defendant appealed.
First—The defendant presents the point that the evidence was insufficient to justify the verdict, and claims that the evidence shows that the collision was the result of carelessness or negligence on the part of the driver of the express wagon, and that the driver of the dummy used due diligence in endeavoring to avoid a collision. There is some conflict in the evidence as to whether the collision was immediately caused by the backing down of the wagon against the dummy, and the defendant insists that as the forward part
Second—The defendant alleges errors of law occurring at the trial and excepted to:
1. The plaintiff was allowed to testify that it was the usual custom of deceased, during his married life, to be at home after business hours, and that they had lived a happy married life; that for eight years prior to his death she had been an invalid and unable to leave the house, and that during that time he had been very kind and attentive, and that she was dependent upon him.
■ 2. The daughter of deceased was allowed to testify that he was kind as a father; that the social and domestic relations as to the family on his part were happy; and that he was kind and loving to plaintiff.
3. The plaintiff was permitted to testify that after Mr. Cook had been taken to his home she discovered pieces of flesh.
The first and second points above stated are fully covered by Section 377, C. C. P.—“Such damages may be given as under all the circumstances of the case may be just”—and by the decision of this Court in Beeson v. Green Mountain G. & S. Co., 57 Cal. 20. We are asked to review that case, and change or modify the views therein expressed. We decline to accede to that request; on the contrary, we here follow them. The plaintiff sued as heir-at-law and as administratrix; in both respects testimony of plaintiff’s relations with deceased was admissible; in the latter respect, testimony as to the relations of the father and daughter was admissible. The defendant claims that the admission of the testimony re-
Third—The defendant claims that the damages were excessive. The testimony shows that the deceased was fifty-nine years old, the surviving family consisting of his widow and daughter, twenty-three years of age, that he was a game and poultry dealer, and made a good comfortable living for himself and family. The verdict was for eight thousand dollars. That sum of money at the statutory rate of interest, would produce five hundred and sixty dollars a year—some forty-six dollars a month. The plaintiff being an invalid, and having been for years dependent upon her husband, we cannot, as law, say that the amount given is more than, “under all the circumstances of the case,” is just.
Judgment and order affirmed.
We are asked to give damages on affirmance. We cannot' say that the appeal was taken for delay; we therefore decline to add damages as a penalty.
Thornton and Sharpstein, JJ., concurred.