Nance v. Fresno City Lines, Inc.

California Court of Appeal May 16, 1941 No. Civ. 2621Published

Before: Marks

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Holding. The court affirmed an order granting a new trial, holding that instructions misstating the high degree of care required of a common carrier constituted prejudicial error that could not be cured by other correct instructions.

Issues

Whether instructions stating that a common carrier's driver need only exercise the care of an ordinarily prudent person were erroneous.
Whether erroneous instructions regarding the duty of care of a common carrier and a passenger were cured by other instructions.
Whether the trial court's order granting a new trial should be reversed despite conflicting evidence.

Disposition. affirmed

Quotations verified verbatim against the opinion

“These instructions disregard the rule establishing the degree of care required of common carriers of persons for hire as stated in section 2100 of the Civil Code”

“If, however, an essential principle of law is stated to the jury materially incorrect, this prejudicial error will not ordinarily be cured by a correct declaration of the same principle in another instruction.”

“In view of these well recognized principles of law we cannot say that the evident conclusion of the trial judge that the erroneous instructions resulted in a miscarriage of justice finds no support in the record”

MARKS, J.

This is an appeal from an order granting a new trial. The order did not specify that the motion was granted because of the insufficiency of the evidence to sustain the verdict of the jury in favor of the defendants. (Code Civ. Proc., sec. 657.)

Defendant Fresno City Lines, Inc., is a common carrier of passengers for hire, and Buck Storey was one of its drivers. Eva H. Nance, wife of Charles A. Nance, was a passenger in one of the buses on December 30, 1939, and had paid her fare. The bus was proceeding north on Fulton Street in the city of Fresno and while in the intersection of Fulton and Mono Streets, Storey, the driver, applied the hydraulic brakes with vacuum boosters, with which the bus was equipped, which caused it to stop suddenly. Mrs. Nance was thrown from her seat and injured.

The jury returned a verdict for defendants. The trial court granted plaintiffs' motion for a new trial and this appeal followed.

Counsel argue the effect of several instructions given to the jury at the request of defendants. The quotation of two of these instructions will serve to illustrate the errors involved. We quote as follows:

“If you find from the evidence that prior to, and at the time of the accident, Buck Storey, driver of the bus, acted as an ordinarily careful person would have acted under the same circumstances, then I charge that your verdict must be in favor of the defendants.”

“You are instructed that when, through no negligence of his own, a person is suddenly placed in great peril, such person is not required to exercise all that presence of mind and carefulness which are justly required of a careful and prudent person under other circumstances. If you shall find

[870]

from the evidence that defendant, Buck Storey, driver of the bus, through no fault of his own, found himself suddenly in great peril, and immediate action was necessary, on his part, in order to avoid it, he was required to use only such care as an ordinarily prudent person would use under the same or similar circumstances, considering the danger, the proximity and the location of other automobiles, and all other circumstances which occurred just prior to, and at the time of, the accident. ’ ’

Nance v. Fresno City Lines, Inc.

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MARKS, J.

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