Gritsch v. Pickwick Stages System

NOURSE, P. J.

The defendant appeals from the judgments in favor of the plaintiffs in two cases consolidated for trial wherein they sought damages for injuries incurred while passengers on one of defendant’s stages. The causes were tried before, and judgments for the plaintiffs were reversed because of erroneous instructions. (131 Cal. App. 774 [22 Pac. (2d) 554.])

The facts are without substantial conflict if we eliminate the exaggerations and opinions of the interested parties. The stage was proceeding northerly on El Camino Real at about 11:30 P. M., when a Buiek came into an intersection and struck the stage in the middle of its left side. This caused the driver of the stage to lose control, and the stage veered to the right, crossed the curb, and came to a stop in a private yard. The plaintiff Helen Gritsch was thrown to the floor of the stage and suffered some personal injuries which required hospitalization. The highway upon which the stage was traveling was a through boulevard fully protected by stop signs at each intersection. The driver of the Buiek and those riding with him at the time all agreed that he failed to stop before entering the boulevard, that he was driving at an excessive speed, and that the Buiek struck the stage to the rear of the driver’s seat when the stage was more than half-way through the intersection, and that the stage was being driven on the right or proper side of the boulevard and first entered the intersection. Other witnesses corroborated this testimony, and it was supported by physical tests and examination of the premises immediately following the collision. We disregard the testimony of one of the plaintiffs as to what, after the reversal on the former trial, she thought she had seen at the time of the accident, as such testimony is contrary to the physical facts and inherently improbable.

The appellant specifies four grounds for reversal, which we will take in order. 1. That the trial court erred in permitting plaintiffs to amend their complaints “to conform to the proof” and plead the concurrent negligence of the driver of the Buiek. The argument is that there was no proof of such negligence at the time the motion was made

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and granted, and that misrepresentations were made to the trial court in support of the motion. We may concede the merit of the argument, but do not discuss the question because we find no possible prejudice arising from the course taken. Ample proof was supplied later by both parties of the negligence of the driver of the Buick, and it was one of the main contentions of the defendant that this negligence alone caused the collision.