Eggink v. Robertson

• Decision Date: 24 April 1961
• Citation: 191 Cal.App.2d 496,13 Cal.Rptr. 76
• Court: California Court of Appeals Court of Appeals
• Parties: Dan EGGINK, Plaintiff and Respondent, v. Shirley ROBERTSON, doing business as Shirley Robertson Trucking Co., and Carl Archie Stanley, Defendants and Appellants. Civ. 10037.

Page 76

13 Cal.Rptr. 76

191 Cal.App.2d 496

Dan EGGINK, Plaintiff and Respondent, v. Shirley ROBERTSON, doing business as Shirley Robertson Trucking Co., and Carl Archie Stanley, Defendants and Appellants.

Civ. 10037.

District Court of Appeal, Third District, California.

April 24, 1961.

Hearing Denied June 21, 1961.

Robert A. Eaton and Thomas Reynolds, Los Angeles, for appellants.

J. Clinton Peterson, Henry H. Kilpatrick, and Dwight Ely, Vallejo, and S. F. Holstein, San Jose, for respondent.

SCHOTTKY, Justice.

Shirley Robertson, doing business as Shirley Robertson Trucking Co., and Carl Archie Stanley, have appealed from a judgment in favor of Dan Eggink in the amount of $120,000 in an action brought by the latter to recover damages for injuries suffered as the result of an automobile accident.

It appears from the record the accident occurred early in the morning on October 20, 1958, on United States Highway 40, in a rural area in Solano County. It was dark at the time of the accident but clear. The pavement was dry and the roadway straight and level. In the vicinity of the accident United States Highway 40 is a divided highway with two traffic lanes in each direction. Dan Eggink at the time was 20 years of age. He was a graduate of a San Jose high school where he was an active participant in athletics. He was a member of the California National Guard. Before the accident Eggink and a friend, Donald Morgan, were on their way to Squaw Valley. Morgan had a yellow Chevrolet pickup truck which was equipped with reflectors as well as taillights. The two left San Francisco about midnight for Squaw Valley. Morgan went to sleep in a sleeping bag in the back of the pickup while Eggink drove. After entering Solano County Eggink became so sleepy he drove off the concrete traffic lanes of the highway and parked some five feet off the traffic lanes on an asphalt shoulder. The truck was parked parallel to the highway. Eggink turned off the engine and the lights of the truck, took his sleeping bag, and went to sleep in the rear of the truck. Officers Pyle and Morris of the California Highway Patrol saw the pickup truck parked on the side of the road about 3:30 a. m. when they were on patrol. Officer Pyle 'easily' saw the pickup truck in his headlights some 200 feet away.

Between 5 and 5:30 a. m. appellant, Carl Archie Stanley, an employee of appellant, Shirley Robertson, was driving a Peterbilt truck and trailer loaded with empty tomato boxes east on United States Highway 40. Stanley testified he was driving in the righthand lane of the highway and that he first saw the pickup when he was some 15 feet away. He was unable to avoid the collision and he struck the pickup in the rear. (Stanley did not personally testify, but his deposition was read and the parties stipulated that if he were present he would testify to certain events.)

The Highway Patrol Officers determined that the point of impact was some four feet from the concrete traffic lanes. The main damage to the pickup was in the center of the rear end. The left rear fender of the pickup was imbedded under the right fender and bumper of the truck.

Eggink was severely injured. Morgan was killed. Eggink had a broken jaw, a lacerated tongue which was almost severed, a comminuted fracture of the left femur, multiple lacerations and bruises, and a dislocated right hip. The examining oral surgeon said that he found a fracture of the lower left mandible, a fracture of the upper left condyle, a cracked right condyle, and a tongue severely lacerated through the midline. Only about one-half inch of tissue in the area of the genioglossus muscle was holding the severed tissue of the tongue.

Several days after the accident surgery was performed on the tongue. A second operation was performed about a year later. At the time of the trial Eggink still had a speech inpediment which would persist until a lump on the tissue of the tongue could be removed. This would require at least one more operation, but this could not be done until an infection in the left leg was cured.

The orthopedic surgeon who operated on Eggink's left leg stated that he drove a medullary pin in the femur from midway in the femur bone to the top of the head of the femur and sutured the thigh muscles which had been ruptured. Six days after this operation an infection developed and an operation was performed to drain infection from the thigh. A second operation was performed in which the cavity was enlarged and evacuated. This bone infection was osteomyelitis and probably will never be cured. At the time of trial the drainage incision had not been closed. Further operations would be necessary. The left leg was shortened one-half inch as a result of the accident. Motion in the knee was greatly reduced. Eggink had suffered permanent disability. He suffered pain. He was unable to get work because of his disability, though he had tried. His mother testified that her son had fits of depression and was restless and irritable since the accident. The medical expenses incurred up to the time of trial were $7,939.02.

Appellants first contend that the court erred in not granting a continuance when appellant Stanley was unable to be present the fourth day of the trial. Stanley had been present the first three days of the trial but he had been rehospitalized because of a cyanotic and edematous foot and was unable to attend. Trial counsel, not present counsel, for appellants asked for a continuance under the provisions of section 595 of the Code of Civil Procedure. A statement of the evidence to which Stanley would have testified was then read. Counsel for respondent stated that respondent was prepared to admit such evidence would be given and agreed that it could be considered by the jury as if actually given in court. Respondent's counsel then pointed out that section 595 provides: '* * * [I]f the adverse party thereupon admits that such evidence would be given, and that it be considered as actually given on the trial, * * *, the trial must not be postponed.' It was also agreed that the court should make a statement to the jury, and the court told the jury that 'the Defendant, Carl Archie Stanley, cannot give his testimony in person this morning for the reasons that he is physically unable to be here, which reasons are not in any manner connected with the accident in question here.' Appellants claim the denial of the continuance was error and prejudicial because Stanley was the only one who could have testified as to what had occurred and that he would have testified that he was on the traffic lane at the moment of impact. The granting or refusal of a continuance is a matter within the discretion of the trial court, and its ruling will not be disturbed unless there is an abuse of discretion. Schlothan v. Rusalem, 41 Cal.2d 414, 260 P.2d 68. We are satisfied that the court did not abuse its discretion in denying the continuance.

Appellants next contend that the court erred in failing to instruct the jury that it was not to draw any adverse inference from the absence of Stanley. No such instruction was requested. A party may not complain on appeal of the failure of the court to give an instruction on a subject where no request was made to the trial court. Perry v. City of San Diego, 80 Cal.App.2d 166, 181 P.2d 98; Bellon v. Silver Gate Theatres, Inc., 4 Cal.2d 1, 47 P.2d 462; Gould v. Samuels, 132 Cal.App.2d 459, 282 P.2d 566. Furthermore, in view of the court's statement to the jury prior to the reading of Stanley's deposition, such an instruction was unnecessary.

Appellants make a vigorous argument that the amount of damages awarded by the jury was excessive and could only have been the result of passion and prejudice.

The measure of damages in an action for personal injuries is the amount which will compensate for all the detriment proximately caused by the negligence of the defendant. Civ.Code, sec. 3333. Damages must in all cases be reasonable (Civ.Code, sec. 3359), but what is a reasonable amount is a question upon which there may legitimately be a wide difference of opinion. Bellman v. San Francisco H. S. Dist., 11 Cal.2d 576, 586, 81 P.2d 894. An allowance of damages is primarily a factual matter, and it is well settled that even though the award may seem large to a reviewing court, it will not interfere unless the allowance is so grossly disproportionate to a sum reasonably warranted by the facts as to shock the sense of justice and raise a presumption that it was the result of passion and prejudice. Kircher v. Atchison, T. & S. F. Ry. Co., 32 Cal.2d 176, 187, 195 P.2d 427. As stated in Mudrick v. Market Street Ry. Co., 11 Cal.2d 724, 735, 81 P.2d 950, 956, 118 A.L.R. 533:

'While the law furnishes no accurate means of measuring damages in personal injury cases, the rule is well established respecting the power and duty of an appellate court in considering that subject and has been stated as follows: 'The amount of damages in such cases is committed, first, to the sound discretion of the jury, and next to the discretion of the judge of the trial court, who, in ruling upon the motion for...