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

Yetta SEFFERT, Plaintiff and Respondent, v. LOS ANGELES TRANSIT LINES, a Callfornia Corporation, and Walter B. Harrell, Defendants and Appellants.*

Civ. 24478.

Decided: November 28, 1960

Harry M. Hunt, Pasadena, and David S. Smith, Los Angeles, for appellants. Irving H. Green and Eric Julber, Los Angeles, and Bernard Newman, Beverly Hills, for respondent.

Defendants appeal from a judgment following a verdict of $187,903.75. Motion for new trial was made and denied.

Defendants' bus, westbound on Sixth Street in Los Angeles, stopped at its regular curb loading zone at Rempart Boulevard to discharge and take on passengers. The bus remained at the curb with the front doors open while certain passengers boarded the bus. Plaintiff contends that she reached the bus while the doors were yet open and while the last previously boarding passenger was on the lower step on the right side of the handrail and that she got on the step to the left of the rail. She testified she put her right hand on the rail and her left foot on the step, and was bringing up her right foot when the doors closed against her left shoulder and arm and pinching her left foot and right arm: that the bus started to move with the closing of the doors and plaintiff was pulled along hopping on one free leg some six or seven times until she was thrown from the bus to the pavement. Several eyewitnesses were called by plaintiff in support of her contentions.

The bus operator testified that before he started the bus he looked at the entryway and did not see plaintiff on or near the bus. He then activated the door closing switch and when the doors were within eight inches of closing he looked forward and started the bus. He promptly stopped the bus after traveling about 25 feet when attracted to plaintiff by her shouting and pounding on the closed doors. The defendants' factual theory was that all passengers had safely boarded the bus and that when the operator started to close the doors the plaintiff was not close enough to the bus to be seen by the operator and that plaintiff could not have reached or touched the bus until after the doors had closed to a point where there was not more than eight inches separating them and the bus had started to move.

Defendants cite several instances of claimed error in the giving of instructions as to the law applicable herein as well as contending that the amount of the verdict is grossly excessive and appears to be the product of passion and prejudice.

As to the court's instructions, defendants' major contention is that it was error under the facts herein shown to give an instruction applying the doctrine of res ipsa loquitur. Further, if it be determined that under the evidence herein adduced it was proper to apply such doctrine, the instruction relating to this subject should have been prefaced by a cautionary instruction providing that res ipsa loquitur becomes applicable if and only in the event the jury should find that there was an accidental occurrence as claimed by plaintiff.

No such cautionary instruction was given the jury herein, however, the court having instructed as follows: ‘If and only in the event that you shall have first found that plaintiff at the time and place herein involved, was a passenger, as that term has been defined in separate instructions, of defendant, as to its bus herein involved, you are instructed: From the happening of the accident involved in this case, an inference arises that a proximate cause of the occurrence was some negligent conduct on the part of the defendant. That inference is a form of evidence and unless there is contrary evidence sufficient to meet or balance it, the jury should find in accordance with the inference. When there is any evidence to the contrary, you must weigh all of the evidence bearing upon the issue of defendant's negligence. If the evidence tending to prove that the accident was caused by a failure of the defendant to exercise the care required of him has greater weight than the evidence to the contrary, you will find in favor of the plaintiff on that issue. In order to meet or balance the inference of negligence, the defendant must present evidence to show either (1) a satisfactory explanation of the accident, that is, a definite cause for the accident, in which there is no negligence on the part of the defendant, or (2) such care on the defendant's part as leads to the conclusion that the accident did not happen because of want of care by him, but was due to some other cause, although the exact cause may be unknown. If such evidence has at least as much convicing force as the inference and other evidence, if any, supporting the inference, then you will find against the plaintiff on that issue.’

 The effect of the giving of the foregoing instruction to the jury was to tell them that the mere proof of injury to plaintiff while a passenger on defendants' bus cast upon the defendants the burden of proving the absence of negligence upon their part, or contributory negligence. In that instruction nothing was said as to the necessity of first finding as a fact that the injury was caused by movement or operation of the bus or by the manipulation of its doors by the bus driver nor was the jury advised that the inference of negligence of defendants arises only if they should first find that the accident happened as claimed by plaintiff. These factual matters were erroneously taken from the jury and, regardless of how they may have viewed them, they were directed as a matter of law to draw the inference of negligence by defendants. This was prejudicial error. Hardin v. San Jose City Lines, Inc., 41 Cal.2d 432, 435, 437, 260 P.2d 63; Kite v. Coastal Oil Company, 162 Cal.App.2d 336, 344, 328 P.2d 45; Salgo v. Leland Stanford, etc., Bd. of Trustees, 154 Cal.App.2d 560, 572, 317 P.2d 170; Mudrick v. Market Street Ry. Co., 11 Cal.2d 724, 731–734, 81 P.2d 950, 118 A.L.R. 533.

Plaintiff argues that other instructions as given by the court supplied the fatal omissions. She points to that portion of the instruction dealing with the subject as to when and the manner by which the relationship of passenger is created which states: ‘and (3) when it being reasonably prudent so to do the person makes her first contact with the bus in the act of entering it or in any event when she gains entrance to the bus.’ This instruction, including the quoted sentence, dealt only with the subject as to whether or not plaintiff had achieved the status of passenger at the time of the occurrence of the accident and bears no relationship to the obligations of the parties one to the other following a factual finding that plaintiff had in fact become a passenger.

Plaintiff further relies in this regard upon the instruction given concerning the issues to be determined by the jury. Here the court said, in part: ‘First, was plaintiff a passenger, as that term is defined in other instructions, of defendant. If you answer that question No, i.e. you will return a verdict for defendant, but if you answer it Yes, i. e. plaintiff was a passenger, you have a second issue to determine namely: 2nd. Did defendant fail to exercise that degree of care toward plaintiff as such passenger, if you shall have so found, imposed and required of it by law; said degree of care being the subject of separate instruction. If you answer that question No, that is defendant did exercise the degree of care imposed and required by law your verdict will be for defendant, but if your answer was Yes, that is defendant did not exercise the degree of care toward plaintiff imposed and required by law, you have a third issue to determine, namely: Third: Was such failure on the part of defendant to exercise toward plaintiff the degree of care imposed and required by law, if you shall have so found, a proximate cause of any injury to plaintiff. If you answer that question No, you will return a verdict for defendant, but if you answer it Yes, then you must find on a fourth question, namely:’ Thereupon followed the fourth issue of possible contributory negligence and proximate cause thereof by plaintiff.

The second and third issues as defined, related only as to whether defendants had failed to exercise that degree of care toward plaintiff after she became a passenger as was required by law and whether, if so, such failure was a proximate cause of any injury to plaintiff. These issues, together with that of contributory negligence of plaintiff are properly applicable in common carrier negligence cases even where their factual circumstances do not involve the doctrine of res ipsa loquitur. By the instruction concerning this latter subject the court told the jury that by the mere act of being a passenger on the bus, regardless of the factual occurrences, an inference arises, from the happening of the accident, that some negligent conduct of defendants was a proximate cause of the injury to plaintiff and in order to meet or balance this inference of negligence the defendants must present affirmative proof, otherwise the jury should find in accordance with the inference. Plaintiff's burden of proof was improperly modified thereby and the obligation to ‘present evidence’ to meet or balance the inference was transferred to defendants. The foregoing instructions as to burden of proof did not cover or overcome this omission, nor, do the instructions taken as a whole advise the jury that the burden was on plaintiff to prove by a preponderance of the evidence that an accident happened as she claimed.

Although the jury might, had it been given the opportunity to do so, without the mandate of the erroneous instruction, have resolved the disputed factual evidence herein in plaintiff's favor, nevertheless, the judgment must be reversed because there is no way of telling whether the jury reached its conclusions because of the improper instruction or because negligence of defendants proximately causing the accident and injuries may have been proved otherwise. Salgo v. Leland Stanford, etc. Bd. of Trustees, supra, 154 Cal.App.2d at pages 572, 573, 317 P.2d at pages 177, 178; Reagh v. San Francisco Unified School District, 119 Cal.App.2d 65, 74, 259 P.2d 43.

Defendants complain that certain additional instructions as given herein were likewise prejudicially erroneous. As a new trial is already indicated, however, a review of such instructions now seems unnecessary.

We next address ourselves to the claim of defendants that the verdict of $187,903.75 is excessive and appears to have been influenced by passion or prejudice. ‘To say that a verdict has been influenced by passion and prejudice is but another way of saying that the verdict exceeds any amount justified by the evidence.’ Zibbell v. Southern Pacific Co., 160 Cal. 237, 254, 116 P. 513, 520.

 It is the established general rule that the amount of damages fixed by the jury and thereafter, as here, approved by the trial court on denial of a motion for a new trial will not be disturbed on appeal unless the evidence shows that the award is so disproportionate to any reasonable limit of compensation as to indicate that it was the result of passion, prejudice or corruption upon the part of the trier of fact. Connolly v. Pre-Mixed Concrete Co., 49 Cal.2d 483, 487–488, 319 P.2d 343; Ericksen v. Southern Pacific Co., 39 Cal.2d 374, 382, 246 P.2d 642.

 A claim by appellant that the amount of damages awarded is excessive concerns an issue which is primarily factual in nature and is not therefore a matter which can be decided upon the basis of the awards made in other cases. Damages are not excessive as a matter of law because a lesser amount has been deemed adequate compensation for a similar injury. Leming v. Oilfields Trucking Co., 44 Cal.2d 343, 356, 282 P.2d 23, 51 A.L.R.2d 107.

 Plaintiff was 42 years of age at the time of the accident with a life expectancy of 34.9 years. She was in good health and was employed in office work earning $375 a month. As a result of the accident her left heel and shin bones were fractured with the main nerve and endings severed; there was an avulsion or tearing away of the skin on most of the left foot. Thereafter plaintiff underwent nine operations, spent some eight months in hospitals and suffered great pain. She is confronted with the probability of one or more additional skin graft operations and the possibility of future osteomyelitis. Two years after the accident her heel lacks two inches of reaching the floor which condition will probably be permanent. She bears a scar from heel to toe on her left foot. She had returned to her employment before the trial.

From the time of the accident to date of trial her doctor and hospital bills amounted to $10,330.50; loss of earnings about $5,600; drugs and medicines $573.42 and miscellaneous $1,544.83 or a total detailed claim of $18,048.75.

Defendants contend, and from our examination of the record it appears, there was no evidence offered as to what future medical or drug expense would necessarily be incurred by plaintiff or as to the probable amount of her future loss of earnings. Nevertheless plaintiff's counsel, in his argument as to damages to the jury drew figures on the blackboard urging a verdict totalling $187,903.75, being the exact sum returned by the jury following deliberation. Defendants point out that this total sum was arrived at by plaintiff's counsel by first listing the special damages of $18,048.75. He then calculated the value of plaintiff's pain for the 22 months between accident and trial at $100 per day, placing the resulting figure of $66,000 on the board. Counsel then estimated future medical expense of plaintiff as $2,000 per year for ten years or $20,000 and at $200 per year for 24 more years totalling $4,800; drugs $1,000 and loss of earnings $10,000. These additional claimed special damages totalled $35,800 to which counsel added $200 per month for 34 years, her future life expectancy, which totalled $68,000. Adding these and some miscellaneous figures for the jury the sum of $187,903.75 was submitted as the sum which should be returned in form of verdict for plaintiff. As heretofore noted the jury did return its verdict for plaintiff in this identical amount.

While we are aware of the rule that damages for personal injuries cannot be held excessive, as a matter of law, simply because the amount may be larger than ordinarily is allowed in such cases, here we have a case where the sum allowed does appear to be excessive when measured by the recital of plaintiff's injuries, her proved special damages, the lack of proof as to what sums, within the view of reasonable medical certainty, will be necessary for her future treatment and care and what her future loss of earnings may be. Counsel for plaintiff endeavored to supply these deficiencies in the proof by furnishing his own figures of future detriment as a part of his argument to the jury. His estimate of plaintiff's future medical expenses as being about $2,000 per year for ten years and $200 per year for 24 more years, with drugs at $1,000 and loss of earnings $10,000 may be considered by him as mere suggestion but the return by the jury of the full and exact amount as so suggested and requested demonstrates an apparent willingness to accept the attorney's calculations in lieu of credible evidence. It is apparent, therefore, that the verdict is excessive and under the circumstances here shown the sum allowed plaintiff by the jury in the verdict emphasizes the fact that the errors above mentioned were prejudicial to the defendants.

The judgment is reversed.

KINCAID, Justice pro tem.

FOX, P. J., and ASHBURN, J., concur.