Newman v. Campbell

California Court of Appeal Nov 29, 1937 No. Civ. 10372Published

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Holding. The court held that the trial court did not commit prejudicial error in refusing a specific instruction on proximate cause because the jury was otherwise adequately instructed, and that the instruction on life expectancy was proper given the conflicting evidence regarding the plaintiff's health.

Issues

Whether the trial court's refusal to give a specific instruction on proximate cause constituted prejudicial error.
Whether the trial court erred in instructing the jury on the plaintiff's life expectancy given the evidence of her health.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The mortality table was admissible and, although not conclusive, was evidence of the probable duration of her life.”

“The conclusions reached on the issues are fairly supported, and no error which would justify the reversal of the judgment has been shown.”

THE COURT.

An appeal by defendant J. A. Campbell, a dentist, from a judgment entered against him in an action to recover for personal injuries alleged to have been caused by the negligent administration of an anaesthetic by his employee.

It was shown by the evidence, although conflicting and subject to different inferences, that the anaesthetic was injected into infected parts of plaintiff’s gums and this with too great frequency. According to the medical testimony injections so made tended to spread the infection, and it supports the jury’s implied finding of negligence and the damage alleged.

Appellant claims that the trial court erred by refusing an instruction on the question of proximate cause, and also by an instruction to the jury with regard to the expectancy of life of persons of plaintiff’s age.

The court by its instruction correctly defined the terms “negligence”, “burden of proof”, “preponderance of the evidence” and “proximate cause”; but appellant complains that the refusal of his proposed instruction was prejudicially erroneous.

The material portion of the instruction refused reads as follows: “If you are unable to ascertain from a preponderance of the evidence in this case that the defendant or his employees were negligent—negligence measured as heretofore defined for you and proximately causing the condition complained of—then your verdict must be for the defendant.” Although the proposed instruction was not improper, nevertheless the other instructions sufficiently covered the issue in

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this particular. As stated, the court correctly defined “proximate cause”, and the jury was told in substance that if there were two or more possible causes of the injury, for one or more of which defendant was responsible, the plaintiff, in order to recover, must show by evidence that the injury was wholly or partly the result of that cause; and that if they found that the injuries were due to a cause over which the defendant had no control, or were not caused by his act or omission, the plaintiff could not recover. These instructions were sufficient, and the refusal of that offered by appellant was not prejudicial. (See

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Newman v. Campbell

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THE COURT.

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