168 P. 234 | Cal. | 1917
Plaintiff brought this action under section
The defense was in part based upon the theory that the damage to plaintiff was the result of an unavoidable accident. Much of the evidence of the defense was to this effect. Appellant himself testified that he was traveling "at not more than fifteen miles an hour" at the time of the collision, and that when "the little boy came running from in front of the truck . . . there wasn't a possible chance to get away from striking him." But the evidence tending to establish defendant's negligence is sufficiently convincing to support the verdict. It shows that appellant was actually traveling very fast; that as he neared the truck he swerved to the left to pass it by; that thereupon seeing the boy in a position of danger he suddenly made some effort to dodge him; but notwithstanding the immediate application of the brakes dragged him about thirty-six feet beyond the point of collision. Indeed, there is testimony that defendant and the driver of the automobile which had first passed the boy were racing along Ninth Street at about thirty-five miles an hour, concededly a dangerous and excessive rate of speed. As is admitted by the pleadings, the maximum speed permitted by the city ordinance was only twenty miles per hour.
Witnesses for defendant testified that deceased was a boy of a reckless and venturesome disposition, who was allowed to play ball and jackstones on the streets and to climb on the back of passing wagons. That his parents were very poor people who worked by the day, the father as a cabinet-maker and the mother as a laundress, and that the child was left in the charge of a Mrs. Anna Whypyhowski, one of their neighbors, who was ordinarily not very diligent in looking after her charge, is quite clear. But it does not appear that the accident was proximately caused by any neglect of Mrs. *356 Whypyhowski, or by the negligence or carelessness of the deceased child, at the particular time of the collision. The evidence, as submitted, is sufficient to support the verdict of the jury that on that occasion he was exercising such reasonable care for his own safety as a child of his age and capacity under similar circumstances would ordinarily exercise. He was not then playing on the street, but, having just completed an errand for Mrs. Whypyhowski, was crossing the street to join some of his boy friends at play in a vacant lot. As in most instances where certain witnesses of the transaction attempt to describe it, the testimony regarding the accident contains many contradictions, but as the evidence substantially supports the verdict, we cannot disturb it on that ground.
Although appellant had introduced evidence to show negligence on the part of the deceased boy and had asked for a number of instructions upon the law of contributory negligence, which were given, he now contends that the court erred in instructing that "the defendant's claim of contributory negligence on the part of the deceased child presupposes the existence of negligence on the part of defendant. . . ." It is first claimed that the instruction had no proper place in the case for the reason that the pleadings raise no issue of contributory negligence. True, the answer, after specifically denying the allegations of the complaint concerning defendant's alleged negligence, limits the affirmative defense to the plea that the accident was caused exclusively by the negligence of the boy. This position, however, was abandoned by appellant, and the case tried upon the theory that contributory negligence was in issue. He cannot now be heard to complain that the court gave instructions on an issue which he had introduced into the trial, and upon which he invoked instructions. Under the issues as presented, therefore, the jury was entitled to find not only that the proximate cause of the death of deceased was either the defendant's negligence or the negligence of the deceased child, but also the joint or coexisting negligence of both himself and defendant. That contributory negligence must as matter of law be predicated upon the existence of negligence on the part of defendant is freely conceded. In fact, an instruction containing identically the same language has received the approval of this court. (Linforth v. San FranciscoGas *357 Elec. Co.,
There is no merit to the point that the jury was erroneously instructed upon the rule of preponderance of evidence.
The law is well settled that a pedestrian crossing a street has a right to assume, until the contrary reasonably appears, that drivers of automobiles will keep a reasonable lookout ahead and exercise ordinary care to avoid causing him injury. The pedestrian likewise is bound generally to look after his own safety, and in that behalf a duty is imposed upon him, when crossing a highway where vehicles are to be looked for, to use due care and caution to see that he is not in danger. (Scott v. San Bernardino Valley etc. Co.,
The main ground urged for reversal is that the verdict is excessive. Our attention is called to the fact that the evidence at the most merely shows that the deceased was a healthy child, both physically and mentally, and of a loving and dutiful disposition toward his parents. No evidence was introduced regarding the cost of his care, maintenance, and schooling, his probable future earnings and the pecuniary advantage which the parents might have enjoyed had be been spared to them. But where, as here, the child is of tender years, such proof is in its nature impossible, and therefore not required. It was said in Houghkirk v. President etc.Delaware H. Canal Co.,
In every case of this character the soundness of the verdict must be determined by its own peculiar facts and circumstances. It is true, also, as said in Bond v. United Railroads, supra,
that "Our power over excessive damages exists only when the fact are such that the excess appears as a matter of law, or is such as to suggest at first blush passion, prejudice, or corruption on the part of the jury (citing cases). Practically, the trial court must bear the whole responsibility in every case." But if "the amount of the damages is obviously so disproportionate to the injury proved as to justify the conclusion that the verdict is not the result of the cool and dispassionate discretion of the jury" (Morgan v. Southern Pac.Co.,
For this reason the judgment must be reversed. So ordered.
Shaw, J., and Sloss, J., concurred.