195 P. 290 | Cal. Ct. App. | 1920
The defendant appeals from a judgment for five thousand dollars entered on the verdict of a jury as damages for the death of Mrs. Ione Smith, aged twenty-three years, as the result of injuries sustained by her while a passenger on an automobile stage, negligently operated by an employee of the appellant in its business as a common carrier of passengers. The action was prosecuted under the provisions of section
The appellant admits the character of its business and that its employee in charge of its stage was negligent. The evidence shows beyond cavil that he did not exercise ordinary, nor, indeed, any care or diligence, to avoid the railroad crossing collision, in which he was instantly killed, and Mrs. Smith, the only other person on the stage, received the injuries which shortly thereafter caused her death. The appellant contends that Mrs. Smith was not a passenger for reward and that under the pleadings there was no right of recovery if its contention in this regard can be sustained. At the time of the accident Mrs. Smith was in good health. She was married, but within a very short time after her marriage she had returned to her mother's home. Her husband had procured an interlocutory decree of divorce on the ground of desertion, but the statutory period required before final decree could be entered had not elapsed at the time of her death. Except for the brief interval following her marriage, for a period of seven years Mrs. Smith had cared for her invalid mother, who was suffering from organic disease of the heart, and who had undergone several severe surgical operations, two of them for cancer. Mrs. Smith occupied the sleeping-room of her mother, and was frequently called upon to render her attentions at night. She bathed her mother daily, fed her, assisted her in walking, and attended upon her in other *280 ways. She also aided her father, and from her earnings had aided an elder sister to gain a special education so that she might be self-supporting. She had also a younger brother. The plaintiff waived claim of the brother and sister to participate in damages. The value of decedent's estate was a little over one hundred dollars.
The appellant's first contentions concern claims of error in rulings on evidence. There is a general argument upon the character of the evidence, but, except in three instances, there is no reference to either specific evidence or rulings.[1] While the mother of Mrs. Smith was on the witness-stand she was permitted to state, over objection, the nature of her ailments during the seven years her daughter had taken care of her. The appellant argues that the evidence of dependency should have been strictly confined to the condition existing at the time of the injury, but under section
[2] Special damages were not claimed. At the close of the plaintiff's case a motion for nonsuit as to any damages on the part of Mrs. Smith's husband was denied. The ruling was proper. This court knows of no authority to support a motion for nonsuit in a negligence case as to a single element of general damages. That is a matter to be corrected by instructions, and the court's instruction upon this subject in this case is considered with other instructions later in this opinion.
[3] The argument that the verdict is not sustained by the evidence and that the judgment is against law is directed to the relative credibility of the evidence on the part of the plaintiff and defendant concerning whether or not Mrs. Smith became a passenger for hire on the stage which was wrecked. On behalf of the plaintiff was the positive testimony of an agent of the defendant that he sold to Mrs. Smith a ticket for the stage just before he saw her enter it, and on behalf of the defendant negative evidence that the ticket was not found on the body of the driver after his death. There was other evidence on the part of both parties tending to support one or the other side of the issue. There was a conflict in evidence at most, and on appeal this court is bound by the determination of the jury, unless, by error in the instructions, the jury was misled to the prejudice of the defendant.
Instructions on several branches of the case are attacked. Those concerning the defendant's theory that Mrs. Smith was not a passenger but a trespasser are first considered. The plaintiff alleged that Mrs. Smith was a passenger for *282
reward. The defendant denied the allegation concerning the payment of fare; denied she was a passenger for reward, and denied she was a passenger. The stage driver had been instructed not to permit anyone to ride without payment of fare. In view of the testimony of the defendant's agent that Mrs. Smith had paid her fare, the theory of the defendant that she was riding free at the invitation of the driver had no support in the evidence. Even though the evidence of the agent could be wholly disregarded, the utmost that could be said of the negative circumstances proved by the defendant is that they might have warranted an inference based upon a suspicion.[4] The court instructed the jury that a person traveling in an autobus used for carrying passengers is, in the absence of countervailing circumstances, presumed to be a passenger for hire. This is a correct statement of law, and, in view of the evidence of the sale of a ticket, did not injure the defendant. By the next instruction the jury was properly told that a common carrier might demand fare either at starting or at any subsequent time. The court had previously instructed the jury upon the duty of carriers of passengers for hire, and had read the provisions of section
The verdict is attacked as excessive in amount. The rule that appellate courts should not set aside judgments on this ground, particularly where, as in this case, there has been a motion for new trial, unless the award of damages is so high or so low as to shock the conscience, has been pointed out so frequently and declared so vigorously that it may be accepted as axiomatic. In this case it cannot be said that an award of five thousand dollars, under the circumstances disclosed by the record, was excessive, or large enough to shock the conscience of any reasonable person.
The judgment is affirmed.
Nourse, J., and Langdon, P. J., concurred.
A petition 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 3, 1921.
All the Justices, except Angellotti, C. J., concurred.