McKinney v. Red Top Cab Co.

THE COURT.

About 5 o’clock on the afternoon of June 27, 1928, plaintiff and her eleven year old daughter were being conveyed from plaintiff’s home on Sanchez Street, San Francisco, to the Southern Pacific station at Third and Townsend Streets, in a taxicab owned by the defendant corporation and driven by the defendant Maloney, intending to entrain for Los Angeles at 6:15 P. M. At the intersection of Fourteenth and Howard Streets a collision occurred between the taxicab and another automobile. The taxicab was overturned, but was immediately righted by the driver and bystanders; and as a result of the collision and in righting the taxicab plaintiff was injured. She was removed at once to the Central Emergency Hospital and

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there given first aid, whereupon she summoned another taxicab and contrary to the advice of the surgeon at the hospital, was driven to the station and boarded the night train for Los Angeles. Her brother met her at the station in Los Angeles the following morning and she was placed under the care of Dr. Earl Eames. She remained in Los Angeles under the care of Dr. Eames for eight days and then, on July 6, 1928, returned to San Francisco, where she received certain medical and electronic treatments. In May, 1929, she instituted this action for damages, and upon trial a jury awarded her a verdict for $9,150, and from the judgment entered thereon defendants prosecute this appeal.

Defendants concede that the evidence relating to the circumstances under which the collision occurred is sufficiently conflicting to preclude them from claiming on appeal that the driver of the taxicab was free from negligence proximately causing the accident, but as grounds for reversal it is urged, first, that they were prevented from having a fair trial because, as they assert, plaintiff’s counsel, during his closing argument to the jury, was guilty of prejudicial misconduct in stating to the jury that the corporation defendant was insured; secondly, that plaintiff failed to take proper care of herself or to obtain proper and necessary medical and surgical treatment, which it is claimed contributed to the extent of her injuries, and that therefore she was guilty of contributory negligence; and third, that the amount of the verdict was excessive.

Taking up the points in the reverse order in which they are made, the record discloses the following facts: At the time of the accident plaintiff was forty-four years of age and by occupation was a solicitor and saleswoman for a distributing dairy. As a result of the accident she sustained a number of cuts, lacerations and contusions about the face, neck, one of her arms, and knees, and although no bones were broken she complained of injuries to her spine and right pinkie. At the emergency hospital, her wounds were cleansed, and while en route to Los Angeles the maid employed on the train brought her a hot compress and watched over her generally; and at Watsonville Junction a local physician met the train, in response to a telegram, but stated that there was nothing to be done for- her, that all she needed was an opiate to insure sleep and rest. The