284 P. 681 | Cal. Ct. App. | 1930
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *175
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *176 The above-named minor respondent and his parents obtained separate verdicts and judgments for damages for personal injuries received by the minor when struck by the automobile of appellant.
The points raised on appeal relate to the sufficiency of the proof, the examination of the jurors, rulings on the evidence and instructions to the jury.
The minor was eight years of age at the time of the accident. He was struck by the appellant's automobile just after he had stepped off of the No. 32 street-car at its southerly and westerly terminus on the west side of Stanyan Street just north of Haight Street, San Francisco. The street-car had approached Haight Street from the north. The automobile came toward the street-car from the south. The minor left the street-car by the front or southerly platform of the street-car and stepped off from the exit of the east side thereof, that being the only exit provided for him. According to the evidence relied upon by respondents, the minor was struck immediately upon stepping off the street-car and within two feet thereof. The appellant claims that the minor respondent suddenly rushed out from the street-car in a diagonal direction without looking for an automobile and had proceeded six or eight feet from the street-car before being struck. *177 [1] While the evidence is conflicting, our examination of the record discloses sufficient evidence of negligence on the part of appellant to support the verdict in favor of respondents. The evidence disclosed negligence on the part of the appellant in several particulars. The jury could have concluded from the evidence that appellant's speed of twenty-five or thirty-five miles per hour was excessive and negligent under the circumstances and conditions disclosed by the record that she should have given a warning signal of her approach; that she drove too close to the street-car, seeing either the conductor or minor respondent making ready to alight in the direction of her course.
[2] It is argued that this court should hold the minor respondent negligent himself as a matter of law. The form of the argument deserves mention. First, the evidence is explained and interpreted in a way so favorably to the appellant as to show that the conduct of the minor in an adult person would amount to contributory negligence; then authorities are cited showing that under some circumstances minors as young as eight years have not only been held capable of contributory negligence but also have been held barred by contributory negligence as a matter of law. Other citations by appellant, however, show that her counsel realize that the question of contributory negligence of a minor cannot be thus divided into two parts. The question must be answered by a consideration of all the evidence in the case, including the evidence of the age and mental capacity of the minor. These last-mentioned facts are to be considered in direct conjunction with each other fact in the case. Neither the trial court nor this court should hold as a matter of law that the minor respondent was guilty of contributory negligence as a matter of law. The effect of his age upon the question of whether he had measured up to the standard of care and conduct which the law exacts from him was a question of fact for the jury. The same thing is true for an additional reason. The facts relied upon by appellant to show that the minor respondent was negligent are disputed facts. The evidence by no means compelled the jury to find that the minor jumped off a moving street-car in the middle of the block and without looking for automobiles, ran in a diagonal course toward the sidewalk and directly into the path of the automobile. *178 Evidence to the contrary justified the jury in finding that the accident did not occur in the manner claimed by the appellant.
[3] Upon motion for new trial appellant's counsel filed an affidavit setting out that in the examination of the jurors they were asked if they were interested as stockholders or otherwise in the Standard Accident Insurance Company. The affidavit further set forth that the named insurance company had not in fact insured the appellant. The counter-affidavit of respondents' counsel stated that the question was asked in good faith, believing that the named insurance company was in fact the insurance carrier of appellant, that appellant was insured at any rate (upon information and belief) in some company which conducted her defense, that the jurors were also questioned generally as to their interest in any liability insurance company, and that counsel for appellant made no objection of any kind in respect to such examination of jurors by respondents. Under these affidavits the trial court was justified in concluding that the incident was merely one of misnomer and that it was neither intended to result nor did it result in a verdict arrived at in any part by an improper consideration of the fact that an insurance carrier would be responsible for such damages as might be awarded respondents. No question is made by the parties of the circumstance that this point was raised in the trial court only by affidavit on motion for a new trial. [4] We should nevertheless say that appellant, after hearing the examination of the jurors at the very outset of the trial, should not be permitted to sit silently through the trial without making any objection and then raise the point only in the event of an unfavorable verdict. [5] Parties may examine jurors to ascertain their possible financial interest in the outcome of the case, but an appeal to prejudice or to other improper considerations has never been permitted. (Girard v. Irvine,
[7] In answering certain questions upon direct examination, appellant answered that she had not sounded her horn prior to the accident and insisted upon adding to her answer "there was no reason for me to (do so)" and "the car was not close enough to me for that when I first saw him (the conductor)." These parts of her answers were properly stricken out upon the ground that they stated conclusions of the witness rather than facts.
[8] Appellant claims that the giving of instruction No. 7 was reversible error under the authority of People v. Miller,
[9] It was proper for the court to instruct that the burden of proof to establish contributory negligence of plaintiff was upon appellant without stating in the same instruction that such contributory negligence might be made to appear by evidence offered by the plaintiffs as well as by the evidence offered by the defendant. That such contributory negligence may be shown by evidence offered by the plaintiffs is not an exception to the rule that the burden of proof is upon the defendant. It is only one of the ways in which the burden of proof may be sustained. There was no more reason for attaching this statement to an instruction on the defendant's burden of proof than to an instruction upon the plaintiffs' burden of proof. Furthermore, the instructions clearly state in another part that appellant's defense could be inferred from evidence offered by respondents.
[10] It was not error to instruct upon the proof of negligence by the proof of violation of a statute or ordinance without stating in the same instruction that negligence so proven is not actionable negligence unless it is a proximate cause of the injury. In the instant case the court also instructed upon the two subjects in a single instruction immediately preceding the questioned one. Neither did the court err in not including in the same instruction a statement concerning the excusable, unintentional or blameless *181
violation of an ordinance or statute. Such a violation, of course, is not in fact or in law a true violation. The case relied upon by appellant in this connection, Berkovitz v.American River Gravel Co.,
[11] The court did not err in refusing to instruct the jury that the respondent could not recover if the accident was caused solely by the negligence of the street-car company. The street-car company was out of the case, its motion for nonsuit having been granted. The only helpful part of the requested instruction was the word "solely." It was a poor way of stating the condition of no actionable negligence upon the part of the appellant, for it called the attention of the jury to a false quantity in the case.
[12] The court properly refused to instruct the jury upon the duty of an adult person when crossing a street. The requested instruction as worded would require of the minor respondent the same care as that required of an adult.
[13] The award of damages was not excessive. The minor's injuries included a transverse fracture of the right leg near the knee, transverse fractures of both arms, and bad cut over left eye which became infected. The minor remained in a hospital with plaster casts on both arms and on the broken leg extending up to the ribs. He remained in the hospital two months and in bed at home for a month longer. There was also testimony to the effect that he suffered nervous shock, contusions and bruises, impairment of his health and strength, and that at the time of the trial he was still nervous and carried a plainly visible scar two inches long over his left eye. There is no merit in the contention that the award of $5,000 was excessive in view of the injuries received by the minor respondent. [14] The award of $2,500 to the parents of the minor included $1125 *182
actual expense. The court's instructions limited the amount which the jury might award the parents to two things, the expense incurred by reason of the accident and such sum as would compensate them for any loss of earnings or service of the minor which they would reasonably suffer during his minority. The absence of evidence of actual earnings of the minor did not make this instruction erroneous. (Girard v. Irvine,
This disposes of all the points raised by the appellant. The judgments appealed from are affirmed.
Sturtevant, J., and Nourse, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on February 14, 1930, and 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 March 13, 1930.
All the Justices concurred. *183