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District Court of Appeal, Second District, Division 1, California.


Civ. 14198.

Decided: February 07, 1944

Russell Hardy and Eugene E. Sax, both of Los Angeles, for appellant. Parker & Stanbury and Harry D. Parker, all of Los Angeles, for respondent.

By her amended complaint filed herein plaintiff alleged that she was a passenger on a motor bus operated by defendant Los Angeles Railway Corporation; that defendant Samuel Finkelstein was operating an automobile along the same highway upon which the motor bus was traveling and in the immediate vicinity of the latter. That both defendants so negligently and carelessly operated their respective motor vehicles as to cause a collision between them, resulting in plaintiff being violently thrown from her seat in the bus and severely injured.

By their answers defendants respectively denied any negligence on their part and each defendant set up as affirmative defenses (a) that the accident was caused solely through the negligence of the other defendant; and (b) that plaintiff was guilty of contributory negligence.

With the issues thus framed the cause proceeded to trial before a jury. During the course of the trial both defendants withdrew their affirmative defense of contributory negligence. The jury returned a verdict in favor of plaintiff and against both defendants in the amount of $5,000. Thereafter both defendants moved for a new trial on all statutory grounds. The motion of defendant Los Angeles Railway Corporation was granted on the grounds of insufficiency of the evidence to justify the verdict and errors of law occurring at the trial which were excepted to by said defendant. The motion of defendant Samuel Finkelstein was granted on the ground of errors of law allegedly committed in the giving of certain instructions to the jury.

This appeal is prosecuted solely from the order granting a new trial to defendant Samuel Finkelstein.

Because the issues presented on this appeal involve the question of whether, had a verdict been rendered in favor of defendant Finkelstein, such a verdict would find support in the evidence, a review of the evidence becomes necessary. After such review, we epitomize the evidence as follows: The accident involved in this litigation occurred about 11 o'clock in the morning on a clear day, with the sun shining, on the north half of Florence Avenue and midway between Makee Street and Compton Avenue in the City of Los Angeles. At the point where the accident occurred Florence Avenue extends in an easterly and westerly direction, is 74 feet wide and has three traffic lanes on the north half thereof. The block from Makee Street to Compton Avenue on Florence Avenue is 351 feet in length. Along the curb at the north side of Florence Avenue between Makee Street and Compton Avenue there were only two places marked for the parking of automobiles. These two places were adjacent to each other at the north curb and were located approximately in the middle of the block. The proper authorities had caused lines to be painted on the pavement at this point, such lines being drawn diagonally, so that it was necessary for automobiles to park at an angle in these two places and, after so parking, the vehicles would be heading in a northwesterly direction while parked there.

The motor bus in which plaintiff was a passenger was westbound in the second lane of traffic. The automobile driven by defendant Samuel Finkelstein was likewise westbound, but in the center lane of traffic immediately to the left of the bus. On reaching Makee Street the automobile passed the motor bus on the left side of the latter. The evidence reveals that the motor bus was being driven by a student driver who was an employee of defendant Los Angeles Railway Corporation, and was just learning to drive the vehicle. An instructor was sitting directly behind the bus driver at the time of the accident. Defendant Finkelstein was a salesman and was intending to make a business call on a customer whose place of business was situated on the south side of Florence Avenue between Makee Street and Compton Avenue. Said defendant intended to park his car in one of the only two parking spaces designated at the north curb for parking in this block. He was familiar therewith and, according to his testimony, had frequently parked there before.

There is evidence that after proceeding a short distance beyond the bus, defendant Finkelstein looked in his rear view mirror and saw the bus in the lane of traffic to his right and about 50 feet to his rear. He then proceeded a distance of about 40 feet and when he turned from the center lane of traffic diagonally in a northwesterly direction, across the path and immediately in front of the approaching motor bus, the collision resulted. Several witnesses testified that defendant Finkelstein turned his automobile in front of the bus when the latter was but 15 to 20 feet behind the automobile. There is testimony that when defendant Finkelstein was about 70 feet east of the parking spaces he gave an arm signal for a right turn but did not sound his horn. One witness testified, “The car pulled on west ahead of the bus, and all of a sudden, he pulled this car directly in front of the bus, and made an effort to park”. Other witnesses testified that the automobile was in motion at the moment of impact and had not yet reached the curb; that the bus was traveling about 20 miles per hour and the automobile 20 to 25 miles per hour. One witness was asked on cross–examination “When the automobile reached the point about 15 to 20 feet ahead of the bus, it suddenly turned to the right and into the bus, is that right?” to which she answered “Yes”. Another witness testified that when he saw the automobile after it had turned to the right, it was three or four feet in front of the bus.

The only testimony given in contradiction of the foregoing and other evidence corroborative thereof, was the testimony of the defendant Finkelstein who testified that when he arrived at a point about 70 feet from the parking space where he intended to park his car he gave a proper arm signal indicating his intention so to do and that he continued to give such signal until his vehicle had entered the parking space. This defendant further testified that he had last seen the bus prior to the impact when he looked in his rear view mirror at which time his vehicle was at a point about 15 or 20 feet east of the place where he intended to park, and at that moment he judged the bus to be from 50 to 60 feet in the rear of his automobile and that the bus did not appear to be traveling very fast. The last–named defendant further testified that after observing the bus at the point just indicated he looked only ahead and did not thereafter see the bus until after the collision had occurred. This defendant testified, contrary to the testimony of all the other witnesses, that the impact did not occur until he had parked his automobile and had alighted from it, at which time, according to his testimony, the bus collided with the rear portion of his parked vehicle.

We must first determine whether the evidence, as a matter of law, would have supported a verdict in favor of respondent Samuel Finkelstein, for, if as contended by appellant, the respondent was, as a matter of law, guilty of negligence which proximately contributed to the former's injury, then a reversal must ensue, for it is well settled that where the evidence as a whole would be insufficient as a matter of law to support a verdict in favor of the moving party, an order granting a motion for a new trial cannot be sustained. Henderson v. Braden, 35 Cal.App.2d 88, 91, 94 P.2d 625. All of the witnesses, other than respondent himself, gave testimony to the effect that he turned directly into the path of the motor bus at a time and in a manner when to an ordinarily prudent person it would have been apparent that he could not make the movement in safety. However, the record does contain respondent's testimony that after passing the bus and when he arrived at a point about 70 feet from his intended parking space, he gave a proper arm signal, and that he continued to give such signal until his vehicle had entered the parking space. That he last observed the bus through his rear mirror when he was about 15 or 20 feet east of the place where he intended to park, and at which time the bus, to him, appeared to be some 50 or 60 feet to the rear of his automobile, and did not appear to him to be traveling fast. Respondent also testified that he made the turn into the parking space in safety; that he had already parked his vehicle and had alighted therefrom before the bus struck it. Undoubtedly, if such testimony was believed by the jury, it would, as a matter of law, support a verdict in his favor. By returning a verdict against him it is manifest, of course, that the jury did not adopt respondent's version of how the accident occurred, and seemingly the court was not impressed with the verity of respondent's testimony, for a new trial was not granted as to him on the ground of insufficiency of the evidence as was the case in granting the motion of his codefendant. However, it cannot be said, under the circumstances here present and the testimony of respondent just narrated, that as a matter of law, the evidence as a whole would be insufficient to support a verdict in his favor, and we must therefore determine whether certain challenged instructions were erroneously given and whether the giving of such insructions prejudiced respondent's substantial rights and prevented him from having a fair trial.

It is now settled law in this state that in a reviewing court all intendments are to be indulged in to support the action of the trial court in passing upon a motion for a new trial. When the question of the propriety of the trial court's ruling on the motion is open to debate, it will not be disturbed. Koyer v. McComber, 12 Cal.2d 175, 183, 82 P.2d 941. Unless the action of the trial court in granting the motion for a new trial constituted an abuse of discretion, the appellate tribunal is without power to interfere. Hall v. Desser, 8 Cal.2d 29, 30, 63 P.2d 809. While, as respondent asserts, courts have often held that judicial discretion is broad and inclusive, nevertheless it is a legal discretion, and must be exercised in consonance with fixed legal principles. Judicial discretion is neither capricious nor arbitrary. As was said in Bailey v. Taaffe, 29 Cal. 422, 424, “It is not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice.” The phrase “judicial discretion” implies the use of discriminating judgment within the bounds of reason and bridled by legal principles, the application of which will tend to promote justice and equity. In the light of what has just been said, we now proceed to a consideration of the instructions given, and the giving of which, respondent urges, entitles him to a new trial.

In defendant Finkelstein's motion for a new trial before the trial court, the first instruction complained of was as follows: “If you find from the evidence that the defendant Sam Finkelstein could have avoided this accident by exercising ordinary care in using his senses of sight and hearing to discover the presence of the Los Angeles Railway bus and in preventing his automobile from colliding with the bus, then you must find for the plaintiff Jane Mazzotta and against the defendant Sam Finkelstein.”

Defendant Finkelstein in the trial court and as respondent in this court bases his attack on this instruction upon the ground that, concluding as it did with a mandate to find for the plaintiff and against the defendant, it was a “formula” instruction; and as such, in order to be a valid admonition to the jury should have contained every element necessary to support a verdict thus directed. In the trial court it was urged by defendant Finkelstein and is here argued that as given the instruction does not require a finding of negligence, proximate cause or damage. A reading of the instruction persuades us that as a prerequisite to a finding against defendant, the language “by exercising ordinary care in using his senses of sight and hearing” envisages the presence of negligence in the conduct of defendant. “Negligence” is the opposite of “ordinary care”. Contending, as respondent did in the trial court and now does in this court, that the instruction is a formula instruction, manifestly then, whether his argument stands or falls depends upon whether his premise is correct and that it was a formula instruction. If it is not a formula instruction, his argument against it is not availing.

We are not unmindful of the holding in Douglas v. South Pacific Co., 203 Cal. 390, 393, 264 P. 237, approved by the Supreme Court in denying a hearing in Mecchi v. Lyon Van & Storage Co., 1940, 38 Cal.App.2d 674, 688, 102 P.2d 422, 104 P.2d 26. In the Douglas case it was said [203 Cal. 390, 264 P. 238]: “The authorities are legion to the effect that a so–called ‘formula’ instruction must contain all the elements essential to a recovery, and the absence of any one of such elements may not be compensated for nor cured by a reference thereto in other instructions correctly and fully stating the law”.

Because of its failure to touch upon the subjects of proximate cause or damage, the instruction complained of might, upon a first reading thereof, be indicted as fatally defective. But can it be said that the instruction was either given to or accepted by the jury as a “formula” instruction? It certainly cannot be considered as a complete statement of the law upon which plaintiff might recover, and appears to us as an instruction amounting only to an exposition of the law, and simply advising the jury that a defendant is never relieved of liability if he has it in his power “by exercising ordinary care in using his senses of sight and hearing” to prevent the injury complained of. Manifestly, if respondent had it in his power, by the exercise of ordinary care, to avoid the accident, then it follows that his negligence in that regard, if any, must have been a proximate cause of the accident and plaintiff's injury. Constituting, as the instruction does, in our judgment, nothing more than a recital of the legal principle that no one may injure another when, by the exercise of ordinary care he can prevent such injury (section 1714, Civil Code), it was not required that all of the elements essential to recovery by plaintiff be set forth therein. Douglas v. South Pacific Co., supra, 203 Cal. at page 394, 264 P. 237. Furthermore, an examination by us of the record discloses that all of these essential elements of negligence, proximate cause and damage were fully and correctly given to the jury in many other instructions, which were given by the trial judge. It is also noteworthy that in the present case plaintiff was admittedly blameless and the defense of contributory negligence was abandoned by both defendants at the trial. She was a passenger on the motor bus and her conduct was, therefore, not in question so far as responsibility for the collision was concerned. To us it does not appear possible or at least reasonably likely that the jury could have been misled, nor respondent's substantial rights injuriously affected by the instruction of which complaint is made.

Passing from the aforesaid instruction, respondent next asserts, as he did when a defendant in the trial court on his motion for a new trial, that it was prejudicial error to give the following instructions: “The reasonable value of the time lost, if any, by said plaintiff since her injury wherein she has been unable to pursue her occupation. In determining this amount, you should consider evidence of said plaintiff's earning capacity, her earnings, and the manner in which she ordinarily occupied her time before the injury, and find what she was reasonably certain to have earned in the time lost had she not been disabled.” “The reasonable value, not exceeding the cost to said plaintiff, of the examinations, attention and care by physicians and surgeons, reasonably required, and actually given, in the treatment of said plaintiff; and reasonably certain to be required, and to be given, in her future treatment, if any”.

It is urged that no testimony was introduced at the trial on the subject of what amount of money the plaintiff “was reasonably certain to have earned” and that there was no evidence that she would be required to undergo medical treatment in the future, nor if she should undergo such treatment, what amount of money would reasonably be required therefor. That, therefore, the giving of the last two aforesaid instructions constituted reversible error. Our review of the record impresses us that there was ample evidence to justify the instruction on the measure of damages as to loss of earning capacity. The record discloses uncontradicted testimony that prior to the accident plaintiff was caring for her five–room house, doing the washing, ironing, cleaning and cooking; that she had three children, living with her at the time of the accident, aged 20, 18 and 15 years respectively, for whom, with the aid of her youngest child after the latter's school hours, she did all the cooking and housekeeping; that up to about six or seven months before the accident she had been working for nearly a year stuffing olives at a salary of $16 per week; that she intended to return to the same line of work and, in fact, at the time of this accident she was on her way from an employment office to which she had gone to sign up for work stuffing olives.

Respondent's difficulty lies in the fact that he confuses loss of earnings with damage to earning capacity. In determining the amount of damages for loss of earning capacity, the jury was entitled to consider the manner in which appellant employed her time prior to the accident, and therefrom to decide what she was reasonably certain to have lost because of her injuries. Though it may appear that one has not earned money over a period of a month, a year, or any other period of time, nevertheless that person's capacity for work and ability to earn money during such period might not be totally impaired. The rule, therefore, is, that though one may not work steadily at all times, damages may be predicated upon the proven ability of one to earn money rather than upon what such person is either earning or has actually earned in the past. Holmes v. California Crushed Fruit Co., 69 Cal.App. 779, 780, 232 P. 178; Hosman v. South Pacific Co., 28 Cal.App.2d 621, 634, 83 P.2d 88. Even though the evidence merely showed that appellant kept house for herself and her children and was silent as to her following any gainful occupation, business or profession, nevertheless, she was entitled to recover damages for the impairment of her ability to work, for as was said in Davis v. Renton, 113 Cal.App. 561, 564, 298 P. 834, 835: “As held in Gotsch v. Market Street Ry., 89 Cal.App. 477, 265 P. 268, the impairment of the [[[ability] of a woman to work is an injury to her personal rights wholly apart from any pecuniary benefit the exercise of such power may bring, and if her injury has lessened this power she ought to be able to recover damages therefor regardless of whether she was engaged in household duties or employed for pecuniary gain.”

With reference to respondent's criticism of the instruction in regard to appellant's right to recover for treatment “reasonably certain to be required, and to be given, in her future treatment, if any”; while it is true that there was no direct evidence to support a finding of future medical expense, there was testimony given by two physicians that plaintiff's disability would continue for from one to three more years. Then again, plaintiff urged no claim for medical expenses other than those incurred up to the time of trial. In fact, at the trial she was permitted to amend her complaint to show medical expenses of only $369 which were proven to have been already incurred. In the questioned instruction on damages the jury was clearly advised that appellant could recover for medical care and attention “actually given” and any other such care “reasonably certain to be required”. We cannot assume that the jury understood the instruction other than as we do, that appellant could recover only for future treatment and care “if any” necessity or requirement therefor was proven. Respondent concedes there was no evidence of any future care being required and jurors being presumed to be persons of reasonable intelligence could not fail to understand that if there was no proof of future treatment, and the reasonable value thereof, then no recovery could be had therefor. We fail to see wherein the claimed error in this single instruction, if any, prejudicially affected the substantial rights of respondent to a fair trial. A reading of all the instructions given satisfies us that the jury was adequately, correctly and fairly instructed upon all issues tendered by the pleadings or raised by the evidence. To that we might add, under the facts of this case as revealed by the evidence, even though it should be conceded that the giving of the questioned instructions was erroneous, nevertheless, section 4 1/2 of Art. VI of the Constitution and section 475 of the Code of Civil Procedure restrains the granting of a new trial unless the court be warranted in saying that a different verdict would probably have been rendered had such errors not occurred. We have gone over the entire record, and are satisfied that in so far as respondent herein is concerned, the jury reached the only verdict possible under the law and the facts.

For the reasons herein expressed, the order granting the motion for a new trial is reversed.

WHITE, Justice.

YORK, P. J., and DORAN, J., concur.

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Docket No: Civ. 14198.

Decided: February 07, 1944

Court: District Court of Appeal, Second District, Division 1, California.

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