Opinion
Rehearing Granted July 28, 1930.
In Bank.
Action by Catherine Gilmore against the Los Angeles Railway Corporation and others. From a judgment for plaintiff, defendant named appeals.
Affirmed.
Appeal from Superior Court, Los Angeles County; Walter S. Gates, judge.
COUNSEL
Gibson, Dunn & Crutcher, of Los Angeles, for appellant.
Newlin & Ashburn and W. C. Mathes, all of Los Angeles, for respondent.
OPINION
SHENK, J.
This appeal is from a judgment on a verdict in favor of the plaintiff in the sum of $7,500 in an action for damages on account of the death of Charles T. Gilmore, the husband of the plaintiff, alleged to have been caused by the negligence of the defendant railway company, the appellant herein.
The deceased met his death when a street car operated by the railway company struck him at a point near the intersection of Western avenue and Council street in the city of Los Angeles. It is conceded that the evidence on the issue of the defendant’s negligence is conflicting. Contributory negligence was charged against the deceased, which, it is claimed, constituted negligence as matter of law.
Council street runs into Western avenue (a north and south street) from the west. The plaintiff and her husband had their home on Western avenue, and, if Council street extended easterly from Western avenue, it would pass through a portion of their home place. On the evening of February 12, 1924, the plaintiff and her husband left their home together, intending to go to the Wilshire Theatre. They proceeded down their driveway to a point near the easterly curb line of Western avenue and opposite Council street. Automobiles were parked along the curb on either side of their driveway. Théy paused at this point to permit three or four automobiles running northerly to pass. The deceased saw a car of the defendant company approaching Council street from the north on the westerly track. Council street was a regular stop for the defendant company’s cars. The two then started to cross Western avenue. The plaintiff stopped, but deceased proceeded ahead of her across Western avenue. The deceased apparently walked rapidly to escape a north-bound automobile. As he reached the westerly rail of the south-bound track, he was hit by the right front corner of the appellant’s car, was thrown to the street, and expired a few moments thereafter. The appellant’s car did not stop at Council street, but increased its speed across the intersection and stopped about 200 feet from where the deceased was hit. The foregoing was established by the testimony of the plaintiff. Other evidence tended to prove that the deceased was south of the south line of Council street proceeding easterly when he was struck, but this evidence raised a conflict for the jury to weigh and determine. It is true that the deceased assumed a degree of risk in crossing the street ahead of the street car, but he had a right to do so. The test is whether a reasonably prudent man would accept the hazard under the particular facts and circumstances in evidence. Ross v. Railways Co., 47 Cal.App. 753, 191 P. 703. The weighing of the probabilities and of the conflicting inferences is ordinarily for the trial court and jury, and not for the reviewing court. Hatzakorzian v. Rucker-Fuller Desk Co., 197 Cal. 82, 95, 239 P. 709, 41 A. L. R. 1027. From the record in this case it cannot be said that an honest difference of opinion between men of average intelligence might not exist. ‘The burden of proving contributory negligence was on the defendants. ‘It is very rare that a set of circumstances is presented which enables a court to say, as a matter of law, that negligence has been shown.’’ Phillips v. Pacific Elec. Ry. Co., 80 Cal.App. 641, 645, 252 P. 628, 629, and cases cited.
The appellant complains of certain instructions. First, it contends that the court should have given certain requested instructions defining the doctrine of last clear chance. But there is nothing in the record to indicate that last clear chance was an issue, nor was such an issue presented to the jury by the instruction. The requested instructions were therefore properly refused.
Next, the appellant complains of an instruction wherein the court stated to the jury that, if it should find that Mr. Gilmore was crossing at the intersection, the rules of ordinary care applicable to street intersections would govern his conduct and any instruction given with reference to any special degree of care required of one crossing a public street between intersections must be disgarded, provided the jury fund that Mr. Gilmore was crossing at said intersection. The appellant contends, in view of the conflict in the evidence as to whether Mr. Gilmore drossed directly at the intersection or south of it, that the instruction is prejudicially erroneous and misleading, in that it told the jury, so it is claimed, that a less degree of care was required of a pedestrian at street intersections than when crossing between intersections; the law being that ordinary care under the circumstances is the measure at all times. But, inasmuch as the instruction standing alone seemingly charged the jury that more than the required degree of ordinary care should be exercised between intersections, we fail to see how the instruction was anything but favorable to the appellant. The instructions elsewhere directed the jury emphatically and correctly that the decedent was required ‘during the entire crossing of the street to exercise the care and caution that a reasonably prudent and careful man in the same or similar circumstances would exercise * * * regardless of whether he was crossing in the middle of the block or at the regular crossing place for pedestrians at the intersection of Council street. * * *’
The appellant next contends that an instruction which stated that a pedestrian had a right to expect that persons operating street cars and other vehicles would so operate them at the customary speed and give the usual warnings and signals is prejudicially erroneous, when, as it is claimed, there was no evidence of the customary speed of cars at that intersection, and when there was evidence that the decedent knew of the approach of the car, in which event the omission of a signal would not constitute negligence. There is, however, the testimony of the appellant’s witnesses that the street car was being operated at its usual rate of speed, and that its speed at the time was 12 to 15 miles an hour. In addition, the court instructed the jury at the request of the appellant that, if it believed that the decedent actually saw and knew of the approach of the car, then whether the bell was rung or was not rung was immaterial. The error in the instruction complained of is not disclosed.
Nor do we find any error in the instruction that the ‘wife is entitled to the support of her husband regardless of her own financial circumstances.’ That the measure of damages is the pecuniary loss suffered by the wife by the deprivation of her legally enforceable right of support, irrespective of the question of her dependence on the decedent, evidence as to which is inadmissible, is well settled. See Shebley v. Peters, 53 Cal.App. 288, 200 P. 364; Powers v. Sutherland, etc., Co., 190 Cal. 487, 213 P. 494.
The appellant further contends that the court committed prejudicial error in instructing the jury that, if its verdict be for the plaintiff, it should render it for a single sum representing the damage suffered by the plaintiff and the daughters of the decedent (who were represented by the defendant Sykes as executor of the will of the decedent joined in the action because of their refusal to join as plaintiff), and that such verdict should compensate the plaintiff and each of the decedent’s daughters for the pecuniary loss, if any, which it might find each of them to have sustained; and that such pecuniary loss might include, not only the loss of support, if any, given to each or any of them, but also the loss of society, comfort, and care, if any, which any of them sustained or to which any of them might be found to be entitled, etc. That pecuniary loss of all the heirs may also include the ‘pecuniary benefit which often may reasonably by expected from a continuance of the ‘society, comfort and protection’ of the deceased,’ is also well settled. See Griffey v. P. Elec. Ry. Co., 58 Cal.App. 509, 517, 209 P. 45; Bond v. United Railroads, 159 Cal. 270, 113 P. 366, 48 L. R. A. (N. S.) 687, Ann. Cas. 1912C, 50. The action was properly an action on behalf of all the heirs to recover an amount for the pecuniary loss suffered by all of them. See Estate of Riccomi, 185 Cal. 458, 197 P. 97, 14 A. L. R. 509. While the defendant might have been entitled, had it so requested, to an instruction that the daughters, in the absence of any evidence of pecuniary loss suffered or to be suffered by them, could not be awarded substantial damages, nevertheless we are unable to agree with the appellant that the charge of the court was a direction to the jury to find damages suffered by the daughters and to include the amount thereof in their verdict. In view of the absence of evidence on the subject and of the repeated statements in evidence that the daughters suffered no damages whatsoever, it must be assumed that the jury, under the court’s charge, found that no pecuniary loss was sustained by them. Under these circumstances, it is difficult to conclude that the appellant is in a position to complain of an apportionment by the trial court after verdict of $300 for the benefit of the daughters. Assuming that the plaintiff widow might have complained with success against such an apportionment, she has not done so. Moreover, the apportionment was and is a protection to the appellant against any further claims of the daughters as heirs of the decedent.
Consideration of the instructions as a whole shows that they were not unfavorable to the defendant.
Finally, the defendant contends that the damages were excessive. Even in view of the decedent’s age, which was seventy-nine in the month of December preceding the accident, we cannot say that the record discloses that the amount of the verdict was provoked by, or was the result of, passion, prejudice, or corruption on the part of the jury. The oral testimony and the photographs in evidence, taken shortly before his death, show that the decedent was an extraordinarily rugged and healthy man for his age, and that he had the appearance of a man much younger in years.
No other points need be discussed.
The judgment is affirmed.
We concur: WASTE, C. J.; SEAWELL, J.; RICHARDS, J.; LANGDON, J.; PRESTON, J.; CURTIS, J.