254 P. 256 | Cal. | 1927
In this action for personal injuries alleged to have been received by plaintiff through the negligent operation of an automobile used as a taxicab, owned and driven by defendant, the jury awarded plaintiff damages in the sum of five thousand dollars. From the judgment entered on the verdict, defendant appealed.
The accident out of which the injuries arose happened in the space formed by the intersection of Alameda Street and East Third Street, in the city of Los Angeles. At that point a double line of street-car tracks run east and west, which are intersected by tracks of a steam railway running north and south. Gates were operated on the east and west sides of Alameda Street to protect traffic from passing trains. Just prior to the collision, the plaintiff was riding a motorcycle in a northerly direction on the right, or east, side of Alameda Street. Defendant was driving his taxicab easterly along East Third Street. A westerly bound street-car on East Third Street was approaching the intersection. Traffic at the point was congested on both streets, and the gates were down, giving the north and south bound traffic on Alameda Street the right of way. The gates were raised, permitting the east and west bound traffic on East Third Street to move, the street-car and the taxicab approaching each other from opposite directions. An instant before the gates were raised, the plaintiff on his motorcycle and an automobile on his left had entered the intersection and were proceeding northerly across East Third Street. Defendant drove rapidly into the intersection, and the driver of the automobile, seeing the speed at which he was approaching, abruptly stopped his car. The plaintiff's vision being obstructed by the automobile on his left, he proceeded across *630 East Third Street and had nearly reached the west-bound street-car track when his motorcycle was struck by the automobile of the defendant. By the impact of the collision plaintiff was thrown on to the fender of the street-car. He suffered a compound fracture of the left leg below the knee and was bruised and cut.
On this appeal the appellant contends, first, that the evidence was insufficient to show that he was guilty of any negligence whatsoever, and, second, conceding that appellant was guilty of negligence, the respondent was guilty of contributory negligence directly contributing to and which was the proximate cause of his injuries. As in most cases in which sudden accidents furnish the cause of action, various inferences and different conclusions may be drawn from the evidence. A number of witnesses testified on each side of this case, explaining their testimony by means of a diagram. The respondent contends that the evidence of physical facts and statements made by the appellant after the accident sustains the contention that the collision was brought about through the undue haste of the defendant to "get to the depot," and in his not allowing sufficient time for the northerly bound traffic to clear the intersection before he attempted to cross Alameda Street. There is evidence, also, to show that he drove into the intersection at an excessive rate of speed. The situation of the parties and the surroundings at the time of the accident were made very clear to the jurors. Their verdict finds ample support in the record of the evidence taken at the trial, both as to the negligence of the appellant and the lack of contributory negligence on the part of the respondent.
Appellant complains of the admission, over his objection, of the testimony of the respondent as to the amount of wages the latter was receiving at the time of the injury. Read as a whole, however, the testimony only showed that respondent was receiving $4.50 a day when he was injured, and that, but for the injury, he would be receiving the same amount at the time of the trial, and did not, in any way, prejudice the case of the appellant.
Complaint is made of the giving of certain instructions. One, given at the request of the plaintiff and which informed the jury, in effect, that it was incumbent on the plaintiff to prove his case to a "moral certainty," was *631
not a correct statement of the law in civil causes (People v.Miller,
Appellant complains that in one of the instructions the jury was told that it might consider as an element of damages such physical pain and mental anxiety as it found plaintiff suffered, or must necessarily suffer in the future. The contention, in part, is that the word "necessarily" impliedly conveyed to the jury the court's view that the injury sustained by plaintiff would continue to exist in the future, which was a question to be passed upon by the jury. This criticism is without merit. Furthermore, as to the use of the word "necessarily," the statute provides that damages may be awarded in a judicial proceeding for detriment certain to result in the future. (Civ. Code, sec.
What is said with reference to the exception to the instruction under the ruling and exception just discussed is applicable to the objection here made to an instruction defining and explaining "compensatory damages."
The judgment is affirmed.
Curtis, J., Preston, J., Shenk, J., Seawell, J., Richards, J., and Langdon, J., concurred. *632
