Robison v. Leigh

DOOLING, J.

On August 6, 1954, Miles Scott, aged 81 years, was struck by a truck driven by defendant and appellant Leigh, suffering a fracture of the right hip. Scott died on January 16, 1955, aged 82, the immediate cause of death being a myocardial infarction due to coronary arteriosclerosis. Respondent Robison as administrator of Scott’s estate sued to recover medical and funeral expenses and the other respondents, five sisters and sole heirs of Scott, sought damages for Scott’s death under section 377, Code of Civil Procedure. Judgment was allowed by the court sitting without a jury in favor of the administrator for $4,992.43 (of which $4,438.65 was for medical expenses and $553.78 was for funeral expenses) and in favor of the heirs for $500.

Appellant challenges the finding of the trial court that the injuries inflicted by his negligence on Scott were a proximate cause of Scott’s death. A medical witness testified that where an elderly person such as Scott suffers a broken hip

[732]

which confines him to bed he . . cannot be as active as they should be, and I feel, in my opinion, that when an elderly person has suffered such an injury, if their death does take place within the first year or so, it could be considered a contributory cause ... I would feel it would be considered a contributory cause ... I could not say with certainty, except what I said before, that I do believe that the injuries and the confinement he suffered would be considered a contributory cause.”

Medical witnesses need not testify positively to support a finding of proximate cause. Their opinion of the probabilities is sufficient for that purpose.

(Travelers Ins. Co.

v.

Industrial Acc. Com.,

33 Cal.2d 685 [203 P.2d 747] ;

cf. Ostertag

v.

Bethlehem, etc. Corp.,

65 Cal.App.2d 795, 806-807 [151 P.2d 647].) Tested by this rule the quoted evidence supports the finding.