283 P. 88 | Cal. Ct. App. | 1929
The above-named actions are brought by two sisters on account of personal injuries sustained by them from an automobile driven by the defendant while the plaintiffs were crossing a certain street in the city of Pasadena. The actions were consolidated and tried together, submitted to the jury upon the same testimony, and a verdict was returned in each case in the sum of $5,000. The two cases are presented to us upon one transcript, and will be considered as one. From the judgments entered upon the verdicts, the defendant appeals in each case.
The record shows that the plaintiffs were both injured as they were crossing Pasadena Avenue, on April 5, 1926; that the injuries were inflicted by an automobile owned and operated by the defendant. The jury found that the injuries were inflicted by reason of the negligent operation of the automobile, at said time and place, by the defendant.
The defendant's motion for a new trial being denied, the defendant appeals and presents for our consideration three questions: Error of the court in instructions to the jury; that the damages awarded were and are excessive; and that the court erred in denying the defendant's motions for a new trial on the ground of newly discovered evidence. These are the only grounds argued by the appellant, and will be the only ones considered by the court. No question is raised as to the sufficiency of the evidence to support the verdict.
[1] Departing from the order of the argument presented in the briefs we will consider the question of excessive damages first. A statement of what the record exhibits we consider a complete answer. The transcript shows that Florence Ritzman suffered such injuries that she was required to remain in St. Vincent's hospital ten weeks; that there was a wound on the right side of her skull with sutures in it; a large swelling on the right side of the skull with a large blood-clot; right eye swollen practically shut; bruises all over her body; that the fracture in the skull extended from four to five inches on the right side; that she suffered from concussion of the brain and hemorrhages within the skull cavity; that at the time of the trial she was in a normal mental condition, but not able to work as had previously been the case; that she was a woman twenty-six *467 years of age; that by reason of the injuries, she had been subjected to the following expenses: Paid a hospital bill in the sum of $631.85, nurses' bill $332, ambulance $5, damage to clothing $40, damage to hat $10, damage to glasses $13, fountain pen $5, lost in salary $1542.59, still indebted for doctors' bills in the sum of $400, making a total sum of $2,974.44 special damages. This sum, deducted from the $5,000 awarded by the jury, allows but $2,025.56 for the personal injuries stated above.[2] The plaintiff Hannah Ritzman had many bruises on her body, the particulars of which we need not state: two broken ribs, the left shoulder broken, some stiffness left in the shoulder, rendered somewhat lame in walking. Prior to the injury this plaintiff also was employed, receiving a salary of $175 per month. This plaintiff was confined to the hospital eighty-one days; paid hospital bills in the sum of $465.55, doctors' bills $100, nurses' bills $356, ambulance $5, damage to clothing, etc., $97.50; lost nine months' salary amounting to the sum of $1692, doctor bill still owing $600. Aggregating special damages in the sum of $3,196. This, subtracted from the $5,000 awarded by the jury, left for personal injuries the sum of $1804.
Neither argument nor citation of authorities is necessary to show that the damages awarded were not excessive. If there is any valid complaint in this particular it belongs to the plaintiffs and not to the defendant.
The main contention of the appellant is that a new trial should be granted by reason of a certain instruction given to the jury. That instruction reads as follows: "You are instructed that there are two cases being tried together, but you should consider the evidence as applying to each case separately, and render a separate verdict in each of said cases, according to the evidence and the law that the court gives you and in view of the fact that two cases are being tried together you should not consider whether the judgment is large or small in either case, but if you find for the plaintiffs, and each of them, you should bring in a verdict in each particular case for a sum not greater than the amount prayed for in the complaints respectively. In the complaint entitled Hannah Ritzman against James E. Mills, the amount prayed for is $12,119; in the complaint entitled Florence Ritzman against James E. Mills the amount prayed *468 for is $11,650. You are to bring in a verdict for the amount in each case that will reasonably and fairly compensate for the injuries received and proven as the proximate result of the accident to the plaintiffs Florence and Hannah, respectively."
[3] It may be admitted that this instruction standing alone does not fully state the law applicable to the case. However, it is fully supplemented by other instructions, as the court very fully and carefully instructed the jury on all phases of the subjects of negligence and contributory negligence. In this particular it is urged by the appellant that the instructions, other than the one referred to, are contradictory of, and conflict with the instruction which we have set out. This contention, however, is not borne out by an examination of the instructions. All the other instructions contained in the record given by the court are simply supplemental to the instruction which we have set out, and cover every phase of the subject of negligence. Our attention has not been called to a single instruction which conflicts or is contradictory with the quoted instruction. In addition to instructing the jury correctly on the question of damages and the burden of proof resting upon the plaintiffs, and also that if the plaintiffs were guilty of any contributory negligence whatsoever proximately leading to their injuries, no recovery could be had, the court in one of its instructions specifically told the jury that they were not to infer from any instruction given by the court that the court was intimating that the plaintiffs were entitled to recover damages; that the jury must find that the injuries were caused by the negligence of the defendant, without any contributory negligence whatsoever on the part of the plaintiffs, and that this applied to both cases. [4] The main contention of the appellant that reversible error appears from the instruction which we have quoted, and that it affirmatively appears therefrom that the appellant has suffered prejudice, is by reason of the fact that the amount of damages claimed by the respective plaintiffs was stated to the jury by the court. In other words, that in giving the instructions the court called the attention of the jury to the amount claimed by the respective plaintiffs, and was an intimation that such sum should be awarded. In support of this contention the appellant cites the case of *469 Hollinger v. York Ry. Co.,
In the case of Muren Coal Ice Co. v. Howell,
Just how the instructing of a jury that they can find in favor of the plaintiffs only such sum as will reasonably and fairly compensate the plaintiffs, as shown by the testimony, not exceeding the amount claimed in the declaration amounts to an intimation that the court expects the jury to find that sum, does not clearly appear. We see no logical connection between the conclusion arrived at in the cases referred to and the instructions given by the court there under consideration. It is true that some of the instructions considered in the cases referred to were defective for other reasons, but the statement of the amount claimed in *471 the declaration does not appear to us to be any reason whatever for concluding that the court expected the jury to be guided by the declaration when the jury has been explicitly advised that their verdict must be based solely upon the testimony showing the injuries must preponderate in favor of the plaintiff, and as well, also, that the negligence of the defendant in causing the injuries must be shown by a preponderance of the testimony, and, likewise, that no plaintiff can recover where his own contributory negligence has proximately caused the injury.
While our own decisions have not expressly passed upon this question, there are a number of cases where the instructions to the jury with regard to the finding of damages conclude with the statement "not exceeding the amount claimed in the complaint," and a number of them stating the amount.
In the case of Hersperger v. Pacific Lumber Co.,
While we recognize the eminence of the authorities cited by the appellant, the reasoning of the cases where not controlled by statute, upon which the appellant relies, does not appeal to us as being sound. Where the trial court explains to the jury fully the law relative to the testimony to be considered by them in determining the amount of damages to be awarded, and then adds that their judgment shall in no case exceed the amount claimed by the plaintiff, a holding that such statement by the court is the expression of an opinion that the verdict should be for the amount claimed by the plaintiff appears to us to be more in the nature of an assumption than a logical conclusion from the premises laid down. In the case at bar no contention is made that the negligence of the defendant was the proximate cause of the injury. All that is urged in this particular is that the instruction of the court affirmatively appears to be prejudicial by reason of naming the damages claimed by the respective plaintiffs. While the respondent calls our attention to the provisions of section 4 1/2 of article VI of the Constitution relative to errors in instructions and that judgments are not to be reversed for errors unless, upon a review of the entire case, including the evidence, the appellate court is satisfied that there has been a miscarriage, we do not deem it necessary to rest our decision upon the section of the Constitution which we recognize would apply in this case, but are of the opinion that without reference to the constitutional provision, no prejudice has resulted to the defendant from the giving of the instruction *473 objected to, and especially is this true when considered in connection with all the instructions given by the court to the jury, particularly explaining how a verdict should be arrived at in damage cases.
The assignment of error by reason of the court's denial of the appellant's motion for a new trial requires but little consideration. [5] In the first place such a motion is not looked upon with favor; [6] in the second place it is primarily addressed to the sound discretion of the trial court; [7] and in the third place it must be shown that diligence was exercised before the trial in obtaining the proffered evidence, and that it could not be discovered by reasonable efforts before the trial.[8] An examination of the uncontradicted affidavits of Sylvester Wilder and Paul Blackwood, submitted by respondents upon hearing of appellant's motion for a new trial, establishes clearly that counsel for the appellant knew about the witnesses alleged to be able to give the newly discovered evidence, long before the trial. The affidavits also show the questionable character of the evidence and that the witnesses who were to give the so-called newly discovered evidence were negotiating for compensation for their testimony prior to the trial. The affidavits also show that counsel for the appellant was advised of the whereabouts of the so-called newly discovered witnesses before the trial of the action at a time before counsel for the appellant appeared as an attorney in the case.
With these facts before the trial court, and others which show the questionable character of the so-called newly discovered evidence, and also that the presence of the witnesses might have been secured if reasonable efforts had been put forth, no basis is laid for our holding that the trial court abused its discretion in denying the appellant's motion for a new trial.
The judgments of the trial court are affirmed.
*474Thompson (R.L.), J., and Finch, P.J., concurred.