Swain v. Fourteenth Street Railroad

De Haven, J. Action for damages alleged to have been sustained by plaintiff through the negligence of defendant in running its street-car against a wagon in which the plaintiff was riding, and thereby violently throwing him to the ground. The plaintiff recovered judgment for the sum of seven thousand five hundred dollars damages, besides costs, and from this judgment, and an order denying its motion for a new trial, the defendant appeals. 1. The evidence upon the part of the plaintiff tended to show that between seven and eight o’clock in the evening of September 12th, the plaintiff, who was a police-officer of Oakland, went in charge of the police patrol wagon to a railroad station in that city for the purpose of conveying to the hospital a young man whose leg had been broken. The injured man was placed on a stretcher in the wagon, and the wagon was driven along the track of the defendant’s street-railroad, not far behind a streetcar, and at about the same rate of speed. The car which the wagon was following turned off on a switch where the street-cars pass each other, and very soon thereafter a car coming from the opposite direction on the main track came in collision with the wagon, by reason of which plaintiff sustained the injuries complained of. As to what took place immediately after he saw the approaching car, and before the collision, the driver of the patrol wagon testified: “ I started to pull my wagon out of the track. I had to do it slow on account of the man, and I saw this fellow was coming up before I could get out, and I hollered and said ‘You stop your car until I can get out.’ He paid no attention, and came on. It seemed as though he came faster. Then officer Babb hollered. He took no notice of it at all. He was looking behind his car. When I first hoi [184] lered to him he was about sixty feet away. I hollered as loud as I could. Officer Babb sung out very loud, — as loud, I guess, as he could holler. I said: ‘Stop that c.ar; stop that car.’ When Babb hollered, he said: ‘ Stop the car; stop the car.’ The driver of the car was looking behind the car; turned away, looking around the corner of the car, — looking at the other car going on, I suppose: The other car had passed at that time.” This testimony was corroborated by other witnesses, all tending to show that the driver of the wagon was endeavoring to avoid the collision in the manner stated by him, and that the driver of the car made no attempt to slacken its speed. The court did not, in view of this evidence, err in denying the motion of defendant for a nonsuit. It was not negligence per se for the driver of the patrol wagon to drive along and upon the track of the defendant’s road. He had a right to do this so long as he used ordinary care to avoid any collision with defendant’s cars. (Shea v. Potrero etc. R. R. Co., 44 Cal. 414; Flickenstein v. Dry Dock etc. R. R. Co., 105 N. Y. 655; 1 Thompson on Negligence, 396.) And it was clearly a question for the jury, whether the driver of the patrol wagon did use ordinary care in endeavoring to avoid the collision, or whether he ought not to have turned out of the track more quickly when he saw defendant’s car approaching. This evidence was also sufficient to show that the driver of the car was negligent in omitting, without any apparent excuse, to look ahead and observe whether the track was clear. It is the duty of such a driver, equally with the driver of any other vehicle, to observe what is in the road before him, so as to avoid inflicting injury upon others, if practicable. 2. The instructions of the court, taken as a whole, fully and fairly stated the law applicable to the case, and as to the respective rights of the parties to the use of that portion of the street in which defendant’s track is laid, and as to the degree of care which each was required to exercise, in order to avoid coming in collision with the other. [185] In the introductory part of its instructions the court said: “ You are the sole judges of the evidence given by all the witnesses here; and if you believe from the evidence that the plaintiff has sustained damage under the circumstances here presented to you by the evidence, and under the law as now being given to you by the court, your verdict must be for plaintiff.” The appellant contends that this statement took away from the jury the right to pass upon the questions of negligence and contributory negligence, and made the right of plaintiff to a verdict depend alone upon the fact that he had been injured.i This language of the court was not as precise and guarded as might have been employed; but we do not think, in view of the full and complete instructions which followed, that it could have been understood by the jury otherwise than as declaring that they should give a verdict for the plaintiff if, upon the evidence and under the law then about to be given, they were convinced that he was entitled to it. 3. There was no error in the instruction numbered 6. In substance, it told the jury that if, by reason of inattention, carelessness, or incompetency, the car-driver failed to avoid the collision, the defendant was liable, if there was no contributory negligence on the part of the plaintiff or the driver of the wagon; and the statement in the preceding part of the instruction, that street-ears are easily and readily stopped, could not have prejudiced the appellant. The fact itself is one of common knowledge, and which the jury might properly consider without any other evidence of its existence. The instruction as given left the jury entirely free to draw from the fact alluded to such inferences as they thought proper, and contained no expression or intimation of the opinion of the court as to the weight which should be accorded to it in their deliberations. 4. The amount of the verdict in this case is large, but we cannot say that it is suggestive of either passion or prejudice on the part of the jury. In fixing damages in. [186] this class of cases, much is left to the discretion of the jury; and when the verdict has been approved by the trial court, this court is not authorized to grant a new trial upon the ground of excessive damages, except in a case where it is plain that the verdict was not the result of the fair and honest judgment of the jury. We find no error in the record. Judgment and order affirmed. McFarland, J., and Sharpstein, J., concurred. Hearing in Bank denied.