Germ v. City and County of San Francisco, 14285

• Decision Date: 15 September 1950
• Docket Number: No. 14285,14285
• Citation: 99 Cal.App.2d 404,222 P.2d 122
• Court: California Court of Appeals Court of Appeals
• Parties: GERM v. CITY AND COUNTY OF SAN FRANCISCO et al.

Page 122

222 P.2d 122

99 Cal.App.2d 404

GERM v. CITY AND COUNTY OF SAN FRANCISCO et al.

No. 14285.

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

Sept. 15, 1950.

Rehearing Denied Sept. 14, 1950.

Hearing Denied Nov. 13, 1950.

Dion R. Holm, City Attorney, George E. Baglin, Deputy City Attorney, San Francisco, for appellant.

John Wynne Herron, San Francisco, for respondent.

BRAY, Justice.

In an action for personal injuries, a jury verdict was rendered against plaintiff in favor of defendant Yellow Cab Company and its driver, Albert A. Brodose, and in favor of plaintiff against the City and County of San Francisco ¹ in the sum of $63,044.20. From the judgment thereon the city appealed.

Questions Presented.

1. Alleged insufficiency of the evidence. 2. Alleged error in instructions. 3. Was the claim presented by plaintiff to the city a verified one? Alleged error in exclusion of testimony concerning it. 4. Alleged misconduct of the trial judge. 5. Alleged error in exclusion and admission of testimony. 6. Alleged error in misconduct of a juror. 7. Alleged misconduct of counsel for Yellow Cab Company. 8. Alleged excessive damages.

Facts.

On a dark Sunday evening about 9:30, at a point on Mission Street in San Francisco south of 15th Street, plaintiff was struck by a cab of defendant Yellow Cab Company, driven by defendant Brodose. Plaintiff and defendants Yellow Cab Company and Brodose claimed that the cab had stopped near plaintiff and that the city's streetcar negligently struck the cab, pushing it into plaintiff. The city's theory was that the streetcar mildly bumped into the taxi after it had already run into plaintiff and inflicted his injuries. The accident happened in 1945. The trial was not had until four years afterward. The evidence was highly conflicting. While the city has meticulously combed the evidence and pointed out many facts supporting its theory, including contradictory statements by some of plaintiff's witnesses, still, taking the evidence and the inferences reasonably deducible therefrom most strongly in favor of plaintiff, as we are required to do, the evidence is sufficient to support the verdict. This evidence follows:

Plaintiff, an unemployed laborer 50 years old, walked from the east side of Mission Street out to the safety zone for streetcar passengers boarding northbound cars at 15th Street. He saw a streetcar coming from the south, from 16th Street, and a Yellow Cab which was about 80 feet away when he left the curb. The cab swerved to a stop facing plaintiff where he was standing at the end (south) of the zone between two of the three raised markers; the front of the cab was at a 'V' painted on the street preceding the zone. The cab was at a slight angle to the southbound tracks, with its left rear fender about a foot from the nearest rail. Plaintiff and the cab remained stopped for from 15 to 20 seconds, when the streetcar came on down the block and struck the cab with great force, pushing it into plaintiff, who was thrown five feet into the air, landed on the hood of the cab, and then rolled off under the cab. The cab driver held his brakes and was pushed along for several feet, and then his foot was knocked off the brake. The streetcar pushed the cab to within 15 feet of the south cross-walk of 15th Street. Skid marks were left on the pavement where the cab had been pushed, that of the left rear tire being about 40 feet long, and parallel to the tracks for a little distance, then swerved over the tracks, and that of the right wheel being about 15 feet long and turning toward the rails and passing over two of the raised safety zone markers.

1. Sufficiency of Evidence.

It is not necessary to detail the evidence given by the various witnesses. While there is strong evidence to support the city's contentions, the testimony of plaintiff, Brodose, Serenia Murphy, Cecil B. Murphy, and Ross Williams, if believed (and it evidently was), was sufficient to support the verdict.

The city contends that certain physical facts conclusively support its contention that the cab had already hit plaintiff before the car arrived. This contention is based upon the assumption that its interpretation of these facts is the only possible one, and upon the conclusion that the jury must necessarily believe its witnesses. For example, its interpretation placed upon the location of the skid marks is not the only reasonable one deducible therefrom; also, it was for the jury to determine the credibility of the city's employees who testified that the damage to the streetcar was extremely slight. In this latter behalf of is significant that while the city produced photographs of the damaged cab it did not produce any of the condition of the streetcar. The city characterizes the injury to the rear of the cab as slight. However, from an examination of the photographs the jury could very well find that the damage was considerable and must have been caused by more than slight force. After an examination of all the evidence, we cannot say that there is any undisputed physical fact which refutes the positive testimony of plaintiff's eye-witnesses to the accident.

2. Instructions.

Among the instructions given were two which for convenience was have lettered (a) and (b).

(a) 'You are hereby instructed that it is the duty of the streetcar operator to anticipate that he might have obstructions, such as a stopped motor vehicle, in his path, and he must keep a proper lookout and keep his streetcar under such control as will enable him to avoid a collision with such stopped motor vehicle, and if the situation requires it, he must slow up and stop. A failure if any, on his part, to use this car[e] to avoid such a collision, is negligence.'

(b) 'You are instructed that the operator of a streetcar has no right to assume that a street is clear or will remain clear, but he must anticipate and expect the presence of others, including motor vehicles and pedestrians, lawfully using such street. Accordingly, the fact, if it be a fact, that the operator of a streetcar did not know that a pedestrian was on the street, is no excuse for conduct which would have amounted to recklessness if he had known that a pedestrian was on such street.'

These instructions are patterned after instructions approved in Meyers v. Bradford, 54 Cal.App. 157, 201 P. 471, which was an action involving a collision between two automobiles. The instructions in the Meyers case have been variously criticized and explained. For example, in Anderson v. Freis, 61 Cal.App.2d 159, 142 P.2d 330, the court considered a similar instruction and found it ambiguous, but as was done in other cases, held that there was no prejudice in giving it as the subject of negligence was fully covered in the other instructions. As to instruction (a), a similar instruction was refused in Blythe v. City & County of San Francisco, 83 Cal.App.2d 125, 188 P.2d 40, 46, which was a case involving a collision between a streetcar and an auto stalled on the tracks. The instruction there read: 'You are instructed that it was the duty of the motorman in operating the streetcar down the hill toward the corner where this accident occurred, to keep his streetcar in such control as would enable him to stop at any time to avoid injury to persons or property lawfully upon the highway, and if the motorman failed in this duty then the defendant, City and County of San Francisco, was guilty of negligence.' This court said: 'The proferred instruction was properly refused because it does not correctly state the law. It was not the legal duty of the motorman to operate and control his streetcar so as to 'enable him to stop at any time to avoid injury to persons or property lawfully upon the highway.' If such were the law it would be the duty of a motorman, proceeding carefully, to stop regardless of the time at which the person or property came upon the tracks. Negligence cannot be based upon such an exacting formula completely divorced from the variables of time, place and surrounding circumstances.' 83 Cal.App.2d at page 135, 188 P.2d at page 46.

Instruction (a) should not be given without modification in an action involving a streetcar accident. Instruction (b), likewise, should not be given in this type of action, as, standing alone, it implies that a motorman, whether he sees a pedestrian on the street, or whether he does not see him, is reckless if the fails to anticipate that the pedestrian might step on to the car tracks. The giving of these instructions was erroneous.

But, under the circumstances of this case, and in view of the provisions of section 4 1/2 of Article VI of the Constitution, we cannot say that it was prejudicial. All of the instructions must be considered together and no one or two considered as an isolated whole. Blackmore v. Brennan, 43 Cal.App.2d 280, 287, 110 P.2d 723. The court further instructed: 'In the absence of knowledge or reason to know to the contrary, the motorman of a streetcar, so long as he is exercising ordinary care, may operate his streetcar forward on the assumption that the driver of an automobile which is traveling in front of the streetcar and in the same direction, will not suddenly stop his automobile on the streetcar track so close to the oncoming streetcar as not to afford the motorman a reasonable opportunity to stop.' 'If you find that the plaintiff in this action, by a failure to exercise reasonable care, caused the taxicab suddenly to stop near the streetcar tracks, and thereafter negligently blocked the passage of the taxicab and the streetcar, and as a proximate result of such conduct on his part the accident occurred, the plaintiff cannot recover in this action.' 'The operator of a streetcar is only obliged to exercise ordinary care and caution in the operation of the car to avoid inflicting injury upon persons on the street.' Under the evidence, the jury had to decide which of the witnesses it was going to...