SNYDER v. TANNER MOTOR LIVERY

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District Court of Appeal, Second District, Division 2, California.

SNYDER v. TANNER MOTOR LIVERY, Limited, et al.

Civ. 10572.

Decided: November 08, 1935

W. I. Gilbert, of Los Angeles, for appellants. Wm. K. Young, of Los Angeles, for respondent.

Plaintiff was a passenger for hire in an automobile owned by the corporate defendant, a common carrier, and driven by its employee, defendant Stewart. Blinded by glaring headlights of an approaching car, Stewart did not observe that he was about to crash into the rear of a truck upon the highway in front of him until it was too late to apply his brakes effectively. To avoid a collision he swerved from the road into a vineyard, and plaintiff was thrown against the window of the car, breaking the glass and receiving severe facial and head lacerations for which damages of $25,000 were awarded by the trial court. Both defendants appeal, and the matter reaches this court upon respondent's motion to dismiss the appeal or affirm the judgment.

In this case the evidence is without substantial dispute. Appellants' only witness, the driver of the automobile, gave testimony in conformity with that offered by respondent, leaving in effect no controversy as to the facts. Respondent was a passenger for hire in a public conveyance. Where an accident occurs in such a case and the passenger is injured, which ordinarily would not occur if reasonable care were exercised, proof of the circumstances of the accident and the exclusive control of the car by the defendants raises a presumption of negligence, and such a presumption is evidence, as is stated by the court in Davis v. Brown, 92 Cal. App. 20, 267 P. 754. It is claimed that respondent was guilty of contributory negligence. But even if he did see the truck in front of the automobile or if he believed the automobile in which he was riding was traveling at an excessive rate of speed, it cannot be said as a matter of law that under the circumstances of this case respondent was under any duty to interfere with the operation of the public conveyance in which he was a passenger for hire. Dowd v. Atlas Taxicab & Auto Service Co., 187 Cal. 523, 202 P. 870. There is no substantial evidence that respondent was guilty of negligence, but the matter was left to the determination of the jury under appropriate instructions whether plaintiff's actions under the circumstances were such as to absolve him from any charge of contributory negligence.

Appellants complain that it was erroneous for the court to instruct the jury upon the doctrine of res ipsa loquitur. Where, as in this instance, a public conveyance in good mechanical condition and moving upon a paved highway swerves from the road and runs off into the bordering terrain, the doctrine referred to applies (Lawrence v. Pickwick Stages, 68 Cal. App. 494, 229 P. 885), and the trial court's instruction as given was without error. Bezera v. Associated Oil Co., 117 Cal. App. 139, 3 P.(2d) 622.

It is urged that the damages awarded are excessive. At the time of the accident respondent was 39 years of age, earning not less than $100 a week. His injuries, in addition to the numerous flesh lacerations, included the severance of certain facial nerves, resulting in permanent partial facial paralysis, with partial loss of power of expression, impairment of speech and hearing. This matter was addressed to the sound discretion of the jury under appropriate instructions, and there is no suggestion that the fact finders were moved by passion or prejudice in arriving at their estimate of the damages suffered.

Other points are argued by appellants, but we regard them as of minor importance and without merit. The case was fairly tried, the jury fully instructed, and we find no error in the record.

The judgment is affirmed.

On Hearing in Supreme Court.

Appellant's petition to have the above entitled cause heard and determined by this court, after judgment in the District Court of Appeal of the Second Appellate District, Division Two, is granted, and said cause transferred to this court for hearing and decision. However, upon suggestion of counsel for appellant, it appears that the litigation herein has been settled and the cause become moot. Hence, said appeal may be and it is hereby dismissed.

GOULD, Justice pro tem.

We concur: CRAIL, P. J.; WOOD, J.WASTE, C. J.; SEAWELL, J.; SHENK, J.; THOMPSON, J.