Ray v. Jackson

• Citation: 219 Cal.App.2d 445,33 Cal.Rptr. 339
• Parties: Gary L. RAY, Plaintiff and Respondent, v. Alfred C. JACKSON, Defendant and Appellant. Civ. 217. . California
• Decision Date: 20 August 1963
• Court: California Court of Appeals

Page 339

33 Cal.Rptr. 339

219 Cal.App.2d 445

Gary L. RAY, Plaintiff and Respondent, v. Alfred C. JACKSON, Defendant and Appellant.

Civ. 217.

District Court of Appeal, Fifth District. California.

Aug. 20, 1963.

Rehearing Denied Sept. 16, 1963.

Hearing Denied Oct. 16, 1963.

Docker, Docker, Perkins & Shelton, by James H. Perkins, Fresno, for appellant.

Laurence B. Myers, Stutsman, Nagel & Ferrari, by J. J. Nagel, Fresno, for respondent.

RALPH M. BROWN, Justice.

Defendant appeals from a judgment entered on a jury verdict in favor of plaintiff for $18,000 and from an order denying a new trial. His motion for reduction of the verdict was also denied. The complaint is for damages for personal injuries. Defendant raised affirmative defenses of contributory negligence and assumption of risk.

Viewing the evidence in the light most favorable to the plaintiff and disregarding conflicts and contradictions, the facts are as follows:

On June 21, 1960, plaintiff, then 19 years of age, was employed by the National Park Service in Sequoia-Kings Canyon National Park. Plaintiff, a coworker, Gary Hogue, and their foreman, Lee Stiltz, were engaged in cutting trees and tree stumps which had been previously marked for removal by another crew. Plaintiff and Hogue were directed by Stiltz to block vehicular traffic on the General's Highway while Stiltz cut a diseased tree so located that it would constitute a hazard to travel if it fell across the highway. All traffic traveling in a general southerly and downhill direction was stopped by plaintiff; Hogue stopped all traffic traveling in the opposite direction. Both workmen wore aluminum safety hats. There is testimony that plaintiff had a flag. At some distance from the tree, signs were placed in the traveled portion of the road warning motorists to slow to 25 miles per hour. At each side of the tree a 'Men and Equipment Working' sign was placed about the middle of the roadway.

Defendant, vacationing with his family in the Park, traveling northerly in his Oldsmobile sedan with his wife and two minor daughters riding in the car, came upon the stopped cars and halted in the line. Ahead of him were three or four stopped vehicles. He saw plaintiff and Hogue controlling traffic.

Stiltz instructed plaintiff to get some wedges from the pickup operated by the National Park Service which had been parked in a service road near defendant's stopped vehicle. Plaintiff started walking southerly toward the service road. It was then about 1:30 or 2:00 p. m. and the weather was clear and dry. Defendant pulled out of line into the southbound lane, passed the stopped vehicles and cut back into the northbound lane. Plaintiff saw defendant's car pull out of line, shouted to Hogue to stop defendant, and started waving his arms and flag and shouting to defendant to stop. Defendant did not see plaintiff, continued on and struck plaintiff causing injuries to his right knee and lower back area. At the time of impact the car was accelerating and its speed was about 20-25 miles per hour. Defendant continued on his way and that might at his campsite was given a citation for hit and run and for obstructed license plates. At a hearing before United States Commissioner Stone, defendant refused to plead guilty to this charge. The charge was reduced to driving without due caution and obstructed license plates, to which he pled guilty and was fined.

On this appeal defendant urges as ground for reversal (1) insufficiency of the evidence; (2) that prejudicial evidence was erroneously admitted; (3) error in instructing the jury; and (4) misconduct of a juror and irregularity in jury proceedings.

Defendant first contends that the evidence is insufficient to support the implied findings of negligence and lack of contributory negligence. This contention and the arguments made in support thereof constitute an attack upon the credibility of plaintiff and his witnesses and points out contradictions and conflicts in the evidence. We have carefully reviewed the record and find substantial credible evidence to support the judgment. The oft quoted rule, enunciated in Behler v. Kunde, 100 Cal.App. 731, 736, 281 P. 76, 78, is applicable:

'It is not the province of a reviewing court to present, by way of opinion, a detailed argument on the sufficiency of the evidence to support the judgment, where it appears that the question is one purely of determining which side shall be believed. The trial court having determined this with the witnesses before it, the controversy is settled.'

Defendant's further argument that plaintiff's witnesses contradicted their own testimony is answered by the rule that conflicts and inconsistencies in the testimony of witnesses are to be resolved by the trier of the facts 'applies to conflicts and inconsistencies in the testimony of a particular witness' (People v. Alonzo, 158 Cal.App.2d 45, 47, 322 P.2d 42, 43).

Defendant next contends that the verdict of the jury awarding the sum of $18,000 is not supported by the evidence and the damages are 'grossly excessive for the injuries plaintiff sustained.' Plaintiff was 19 years of age at the time of the accident and 21 at the time of trial.

There is testimony that plaintiff sustained an acute low back strain and that the medial meniscus (cartilage cushion between knee joint and thigh bone) in the right knee was torn, causing swelling, pain and a locking of the knee joint. In July 1960 plaintiff was confined to a hospital for five days where he underwent surgery for the removal of the lacerated meniscus. From about June 25, 1960, until December 14, 1960, he was given physical therapy treatments consisting of water baths, lamp treatments, and applied heat, and engaged in a home exercise program for the purpose of alleviating discomfort and strengthening his knee. From approximately October 27, 1960, until December 14, 1960, he followed a physical therapy program of hot packs, massage and low back flexion exercises for the back injury. He was released for light duty on August 22 and for full duty on September 5, 1960. At least as late as January 12, 1961, he was still under the care of a physician. Prior to surgery, the torn meniscus caused the knee joint to lock until plaintiff grasped it with both hands and applying pressure caused it to 'pop' or unlock. He testified that after the operation, he still experienced the sensation of a locking of the joint. At the time of trial he was still complaining of pain in the low back area and in the knee.

Dr. Raymond Knight, an orthopedic surgeon, testified in detail as to the nature and extent of plaintiff's injuries, the surgical procedure followed in the removal of the meniscus, and the post-operative treatment and therapy. This expert further testified that the medial meniscus is a natural cushion between the knee and thigh bone; that its removal has resulted in bone wearing against bone; that the knee would 'wear out sooner' and that 'there is a definite relationship between injuries to the inside of the knee joint, such as meniscus injury, and degenerative changes on the under surface of the kneecap'; and, when the meniscus is removed, the knee is more susceptible to degenerative diseases. He also testified that the injury to the low back area was an acute back strain, involving a tearing of, or injury to, certain muscle fibers; that the muscle damage has resulted in inelastic scar tissue which would be 'bothersome' with prolonged use; and that the residual fibrositis probably would be permanent.

Dr. Harold Jakes, who assisted Dr. Knight in the surgery, testified for defendant. He testified as to the plaintiff's injuries, the operation, and treatment given substantially as did Dr. Knight, but Dr. Jakes disagreed as to the extent and permanency of the residual injuries. The jury resolved all conflicts in the expert testimony in favor of plaintiff. In the exercise of its discretion the trial court denied defendant's motions for a reduction of damages and for a new trial.

The rules governing appellate review of a charge that damages are excessive are set out in Torres v. City of Los Angeles, 58 Cal.2d 35, at page 53, 22 Cal.Rptr. 866, at page 877, 372 P.2d 906, at page 917 as follows:

'Because injuries are rarely identical in nature and the amount of pain and suffering endured as a result of similar physical injuries varies greatly, the extent of damages suffered cannot be measured by an absolute monetary standard. [Citation.] The determinations of the jury and trial court are therefore entitled to great weight and should be upheld wherever reasonably possible. [Citation.] As this court stated recently in Seffert v. Los Angeles Transit Lines, 56 Cal.2d 498, 506-509, 15 Cal.Rptr. 161, 166, 364 P.2d 337, 342, 'The amount of damages is a fact question, first committed to the discretion of the jury and next to the discretion of the trial judge on a motion for new trial. They see and hear the witnesses and frequently, as in this case, see the injury and the impairment that has resulted therefrom. As a result, all presumptions are in favor of the decision of the trial court [citation] * * *.

"* * * Basically, the question that should be decided by the appellate courts is whether or not the verdict is so out of line with reason that it shocks the conscience and necessarily implies that the verdict must have been the result of passion and prejudice."

(See Westcott v. Hamilton, 202 Cal.App.2d 261, 276, 20 Cal.Rptr. 677.)

Measured by these rules and the testimony briefly recited above, we cannot say as a matter of law that the damages awarded in this instance were excessive or that the trial court erred in denying defendant's motions for a reduction in the amount of damages and for a new trial.

Defendant's further argument that the trial court erred in instructing the jury on the issue of damages for future disablement is without merit. It is not contended that the form of instructions is erroneous;...