145 P. 1013 | Cal. | 1915
The plaintiff appeals from an order denying his motion for a new trial. The action was brought to recover damages for personal injuries sustained by plaintiff as the result of a collision between an automobile driven by him and an electric street-car of the defendant. There was a jury trial and a verdict and judgment in favor of the defendant.
The testimony on the issues of defendant's negligence and plaintiff's contributory negligence was sharply conflicting, and no question is made of the sufficiency of the evidence to support the verdict. While it was shown without contradiction that the plaintiff had suffered some physical injuries, there was a good deal of controversy over the extent of these injuries, the defendant claiming that plaintiff was greatly exaggerating their severity. After the accident, the plaintiff was taken to a hospital. There he was attended by two physicians. He also had the care of a nurse. None of these three persons was produced as a witness.
The court gave an instruction in which, after stating that, by reason of the privilege defined in section 1881 of the Code of Civil Procedure, the physicians who had attended plaintiff could not testify without his consent, it charged that if plaintiff had failed to call them as witnesses, and showed no reason for such failure, the law presumed that their testimony would have been against him. A like presumption was declared to arise from the unexplained failure to call the nurse.
These instructions are assigned as error. So far, at least, as the physicians are concerned, the instruction given is in conflict with the views expressed in Thomas v. Gates,
Only one other point is made. It is claimed that the court erred in instructing the jury that there was no allegation or evidence of any ordinance limiting the rate of speed at which defendant might propel its cars at the place where the collision occurred, "and defendant had a right to drive or propel its said car at any rate which it saw fit which was not inconsistent with the exercise of ordinary care." The complaint charged that the car was being negligently driven at a rate of speed of about thirty miles an hour. Whether the speed was in excess of a rate which, under all the circumstances, would be compatible with the exercise of due care, was therefore an issue in the case. The instruction informed the jury that there was no arbitrary or set limit of speed, but that they must determine whether the car was being run at a rate beyond that which would be employed by one exercising ordinary care. This was a correct statement of the obligation of the defendant so far as the speed of the car was concerned. The plaintiff was not prejudiced by the charge that there was no limit fixed by ordinance, since it is not pretended that there was any such limit. If this part of the instruction was outside of the issues, it could not have misled the jury in any way. (See George v. Los Angeles Ry. Co.,
The order is affirmed.
Shaw, J., and Angellotti, C.J., concurred.