51 Cal. App. 2d 559 | Cal. Ct. App. | 1942
Plaintiff commenced this action to recover damages for the wrongful death of her son resulting from a collision of two trucks. A jury returned a verdict in plaintiff’s favor in the sum of $9,500. From the ensuing judgment defendants have appealed.
The collision occurred on March 5, 1940, between 4 and 5 o ’clock a. m. on Garvey road, a paved, four lane highway in the county of Los Angeles. Plaintiff’s son was driving a truck owned by Armour & Company in an easterly direction on the south side of the highway and defendant Busick was driving a truck owned by defendant De Mirjian in a westerly direction. The collision took place at a point which was south of the center line of the highway, near the most southerly traffic lane. As a result of the head-on • collision both trucks were severely damaged by the force of the impact, as well as by the ensuing fire which enveloped them. Plaintiff’s son was pinned in the cab of the truck and was burned to death.
At the time of the collision defendant Busick was driving on the left, the wrong side of the highway, and therefore was presumptively negligent. (Jolley v. Clemens, 28 Cal. App. (2d) 55 [82 P. (2d) 51].) In an effort to rebut the presumption of negligence, defendant Busick testified that shortly before the accident, while he was driving on the right side of
We are unable to agree with defendants’ contention that the verdict is not supported by substantial evidence. Although defendant Busick was the only eyewitness to the accident the jury, whose duty it was to weigh the evidence and determine the credibility of witnesses, was not required to accept his version of the accident as being true. In addition to the presumption of negligence, arising from the fact that defendant Busick was driving on the wrong side of the highway, there was other evidence in conflict with the claim that the accident was unavoidable. The expert who testified on behalf of defendants concerning the manner in which the draglink might have become disconnected prior to the accident stated that if the steering mechanism had been broken in such manner as he described the front wheels would have “jackknifed” and, as the forward motion of the truck continued, the front tires would have skidded. However, there were no skid marks made by defendant’s truck. From the manner in which the
During the course of the trial defendants offered the testimony of a witness concerning the results of an experiment which he had conducted with a truck of the same make and design as that driven by defendant Busick, in an effort to show how the steering gear of the truck could have become dislocated prior to the collision. This evidence was excluded and defendants now assign the ruling as error. Defendants proposed to show that with the truck used in the experiment traveling on a paved highway similar in character to the highway on which the accident occurred, when an unyielding object was placed between the shackle bolt at the rear of the left front spring and the rear housing of the draglink, and the driver turned the steering wheel to the right, the draglink was forced off the pitman-arm knuckle within a distance of less than 40 feet, spreading the housing of the draglink in the same manner as appeared from an inspection of the draglink involved in the accident; also that the same test was made with the truck standing still with the same result. The manner in which the draglink became dislocated from the pitman-arm was never established by direct evidence, the only testimony
Defendants assign as error the refusal of the trial court to give certain requested instructions on the subject of burden of proof. They complain especially of the failure to give an instruction in which it is pointed out that defendants contend that the car was properly greased and inspected and that they had no knowledge of any mechanical defect. In other instructions given by the court the jury was correctly informed that “the burden is upon the plaintiff to prove by a preponderance of evidence that a defendant was negligent and that such negligence was a proximate cause of the death of the deceased,” and further that “The law does not permit you to guess or speculate as to the cause of the accident in question. If the evidence is equally balanced on the issue of negligence or proximate cause, so that it does not preponderate in favor of the party making the charge, then he has failed to fulfill his burden of proof. To put the matter in another way, if after considering all the evidence, you should find that it is just as probable that the cause of the accident was one not involving negligence on defendants’ part as it is that negligence on his part was a proximate cause, then, because the conflicting probabilities are equal, a case against the defendant has not been established.” The jury was also informed of the meaning of “preponderance of evidence” and was told how to weigh conflicting evidence. The refusal of the court to give several requested instructions on the subject of unavoidable accident is also assigned as error. The trial court did inform the jury that one of the defenses relied on by defendants was that the collision was the result of an inevitable accident without negligence on their part, because
Defendants contend that the court erred in refusing their requested instruction on the subject of damages, conceding, however, that in general the substance of the proposed instruction was covered by other instructions. They assert that the court failed to instruct the jury that recovery was to be limited to the pecuniary value of the child’s life to the parent for the probable duration of the parent’s life, or the joint lives of parent and child. The court charged the jury that if they found plaintiff to be entitled to a verdict she was to be awarded such sum as, “under all the circumstances of the case, may be just compensation for the pecuniary loss she has suffered by reason of the death of her son. ... In weighing these matters, you may consider the age of the deceased and of plaintiff, the physical condition of deceased and of plaintiff as it existed at the time of the death and immediately prior thereto; their respective expectancies of life as shown by the evidence. . . . You may, insofar as the same are shown by the evidence,
The assertion that under the instructions the jury was authorized to, and did bring in a verdict for more than the amount which was shown by the evidence to be plaintiff’s pecuniary loss is based entirely upon defendants’ claim that the jury was required to find that plaintiff’s life expectance was 8.54 years. The jury was correctly instructed to the effect that it was not bound by the precise estimates of life expectancy as shown by the mortality tables, nor was it required to accept the estimates as to past earning capacity of the deceased son. (Herron v. Smith Bros., Inc., 116 Cal. App. 518, 522 [2 P. (2d) 1012].) Since the evidence discloses that plaintiff was in unusually good health and had never suffered from any serious illness, the jury might well have found that plaintiff’s life expectancy exceeded that shown by the mortality table. It is a matter of common knowledge that many persons live beyond the period of life allotted them by the mortality tables. (Coughman v. Harman, 135 Cal. App. 49, 58 [26 P. (2d) 851].) The court did not err in refusing the requested instructions.
We can agree with some of the statements made by the able counsel for appellants in furtherance of the object of the appeal but we cannot agree with his views on the subject of “California Jury Instructions,” which has been generously endorsed and used by the bar. Counsel states that nearly all of the court’s instructions were taken from this work, which he characterizes as “a labor-saving, loose-leaf book.” He states that most of the instructions contained therein are not adaptable to specific theories of a case except at the cost of labor and rearrangement and that the work “does not contain the whole gospel of the law by a long shot.” This is the first adverse criticism of the work in question by a member of the bar which has come to our attention. Unquestionably “California Jury Instructions” has saved much labor on the part of trial- judges and it should be added that this work has saved considerable labor on the part of the justices of the reviewing
The judgment is affirmed.
Moore, P. J., and McComb, J., concurred.
Appellants’ petition for a hearing by the Supreme Court was denied June 25, 1942.