Seffert v. Los Angeles Transit Lines

• Decision Date: 17 August 1961
• Citation: 15 Cal.Rptr. 161,56 Cal.2d 498,364 P.2d 337
• Parties: , 364 P.2d 337 Yetta SEFFERT, Plaintiff and Respondent, v. LOS ANGELES TRANSIT LINES (a Corporation) and Walter B. Harrell, Defendants and Appellants. L. A. 26201
• Court: California Supreme Court

Page 161

15 Cal.Rptr. 161

56 Cal.2d 498, 364 P.2d 337

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

L. A. 26201.

Supreme Court of California

Aug. 17, 1961.

Rehearing Denied Sept. 13, 1961.

Harry M. Hunt, Pasadena, and David S. Smith, Los Angeles, for defendants and appellants.

Irving H. Green, Wright, Wright, Goldwater & Mack, John H. Rice and Andrew J. Weisz, Los Angeles, for plaintiff and respondent.

PETERS, Justice.

Defendants appeal from a judgment for plaintiff for $187,903.75 entered on a jury verdict. Their motion for a new trial for errors of law and excessiveness of damages was denied.

At the trial plaintiff contended that she was properly entering defendants' bus when the doors closed suddenly catching her right hand and left foot. The bus started, dragged her some distance, and then threw her to the pavement. Defendants contended that the injury resulted from plaintiff's own negligence, that she was late for work and either ran into the side of the bus after the doors had closed or ran after the bus and attempted to enter after the doors had nearly closed.

The evidence supports plaintiff's version of the facts. Several eyewitnesses testified that plaintiff started to board the bus while it was standing with the doors wide open. Defendants do not challenge the sufficiency of the evidence. They do contend, however, that prejudicial errors were committed during the trial and that the verdict is excessive.

There Was No Prejudicial Error on the Issue of Liability

Defendants contend that the court erred in giving instructions on res ipsa loquitur on the ground that the doctrine is inapplicable when, as in this case, the defendant does not possess superior knowledge concerning the accident or when, as in this case, the plaintiff plays an active part in the events leading to it. There is no merit in this contention. Superior knowledge by the defendant is not a pre-requisite for the application of the doctrine. Leet v. Union Pac. R. R. Co., 25 Cal.2d 605, 619-620, 155 P.2d 42, 158 A.L.R. 1008; see Prosser, Res Ipsa Loquitur in California, 37 Cal.L.Rev. 183, 202-204. Nor does participation by the plaintiff in the events leading to the accident preclude its application if there is evidence that plaintiff's negligence, if any, was not a proximate cause of the accident. Shaw v. Pacific Greyhound Lines, 50 Cal.2d 153, 157, 323 P.2d 391; Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 444, 247 P.2d 344; see Fleming, Torts 299.

Defendants contend that the instruction on res ipsa loquitur erroenously shifted the burden of proof by requiring them to prove that they were not negligent. The instruction stated that if and only if plaintiff was a passenger as defined by prior instructions then 'from the happening of the accident * * * an inference arises that a proximate cause of the occurrence was some negligent conduct on the part of defendant. That inference is a form of evidence ¹ and unless there is contrary evidence sufficient to meet or balance it, the jury should find in accordance with the inference. * * * 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, in which there is no negligence on the part of 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 convincing force as the inference and other evidence, if any, supporting the inference, then you will find against the plaintiff on that issue.' (Italics added.)

Defendants quote the italicized part of the foregoing instruction out of context to support their contention that the instruction shifted the burden of proof. Read as a whole the instructions correctly state the law of California that if defendants are to prevail they must rebut the res ipsa loquitur inference with evidence of as convincing force. Hardin v. San Jose City Lines, Inc., 41 Cal.2d 432, 437, 260 P.2d 63; Burr v. Sherwin Williams Co., 42 Cal.2d 682, 691, 268 P.2d 1041; Williams v. City of Long Beach, 42 Cal.2d 716, 718, 268 P.2d 1061.

Defendants also contend that the court erred in failing to caution the jury that the doctrine can be invoked only if the jury finds that the incident occurred as claimed by plaintiff and that plaintiff's negligence was not a contributory proximate cause. Hardin v. San Jose City Lines, Inc., supra, 41 Cal.2d 432, 435, 260 P.2d 63. Defendant did not request such a cautionary instruction. Moreover the subject was covered by other instructions.

The court instructed the jury that the doctrine of res ipsa loquitur applies 'if and only in the event' the jury should find that plaintiff was a passenger. Under the court's definition plaintiff was not a passenger unless she entered the bus when it was reasonably prudent to do so. ² In effect the instruction stated that the doctrine did not apply if the jury believed that the accident happened as defendant contended. Furthermore, the jury was instructed to return a verdict for defendant if it found that plaintiff was contributively negligent. There is, therefore, implied in the verdict a finding that the accident occurred as described by plaintiff rather than as described by defendants.

There is no merit in defendants' contention that the court committed prejudicial misconduct in conducting the examination of a nine-year-old witness. Because of her tender years the court conducted the initial examination, and, in a sympathetic, impartial, and commendable manner, elicited relevant testimony. Nearly all of the court's questions were asked without objection and defendants were given full opportunity to cross-examine.

None of the other claimed errors on the issue of liability, all minor in nature, has merit.

The Damages Were Not Excessive

One of the major contentions of defendants is that the damages are excessive, as a matter of law. There is no merit to this contention.

The evidence most favorable to the plaintiff shows that prior to the accident plaintiff was in good health, and had suffered no prior serious injuries. She was single, and had been self supporting for 20 of her 42 years. The accident happened on October 11, 1957. The trial took place in July and August of 1959.

As already pointed out, the injury occurred when plaintiff was caught in the doors of defendants' bus when it started up before she had gained full entry. As a result she was dragged for some distance. The record is uncontradicted that her injuries were serious, painful, disabling and permanent.

The major injuries were to plaintiff's left foot. The main arteries and nerves leading to that foot, and the posterior tibial vessels and nerve of that foot, were completely severed at the ankle. The main blood vessel which supplies blood to that foot had to be tied off, with the result that there is a permanent stoppage of the main blood source. The heel and shin bones were fractured. There were deep lacerations and an avulsion ³ which involved the skin and soft tissue of the entire foot.

These injuries were extremely painful. They have resulted in a permanently raised left heel, which is two inches above the floor level, caused by the the contraction of the ankle joint capsule. Plaintiff is crippled and will suffer pain for life. ⁴ Although this pain could, perhaps, be alleviated by an operative fusion of the ankle, the doctors considered and rejected this procedure because the area has been deprived of its normal blood supply. The foot is not only permanently deformed but has a persistent open ulcer on the heel, there being a continuous drainge from the entire area. Medical care of this foot and ankle is to be reasonably expected for the remainder of plaintiff's life.

Since the accident, and because of it, plaintiff has undergone nine operations and has spent eight months in various hospitals and rehabilitation centers. These operations involved painful skin grafting and other painful procedures. One involved the surgical removal of gangrenous skin leaving painful raw and open flesh exposed from the heel to the toe. Another involved a left lumbar sympathectomy in which plaintiff's abdomen was entered to sever the nerves affecting the remaining blood vessels of the left leg in order to force those blood vessels to remain open at all times to the maximum extent. Still another operation involved a cross leg flap graft of skin and tissue from plaintiff's thigh which required that her left foot be brought up to her right thigh and held at this painful angle, motionless, and in a cast for a month until the flap of skin and fat, partially removed from her thigh, but still nourished there by a skin connection, could be grafted to the bottom of her foot, and until the host site could develop enough blood vessels to support it. Several future operations of this nature may be necessary. One result of this operation was to leave a defective area of the thigh where the normal fat is missing and the muscles exposed and the local nerves are missing. This condition is permanent and disfiguring.

Another operation called a debridement, was required. This involved removal of many small muscles of the foot, much of the fat beneath the skin, cleaning the end of the severed nerve, and tying off the severed vein and artery.

The ulcer on the heel is probably permanent, and there is the constant and real danger that osteomyelitis may develop if the infection extends into the bone. If this happens the heel bone would have to be removed surgically and perhaps the entire foot amputated.

Although plaintiff has gone back to work, she testified that she has difficulty standing, walking or even sitting, and must lie down frequently; that the leg is still very...