Kalleg v. Fassio

NOURSE, P. J.

Four actions for damages for injuries arising out of an automobile collision were tried jointly. George Kalleg, the driver of one of the cars, sued for personal injuries to himself; his wife, Dorothy, sued for personal injuries to herself; two minor children of these parties each sued through their guardian for personal injuries. The jury returned four verdicts. In the actions of the husband and the-wife the verdict found “in favor of plaintiff” and awarded “the damages in the sum of one dollar, $1.00”. In the actions of the two minors verdicts for $1500 were returned in each case. These judgments have been paid, but both husband and wife have appealed upon the same record from the verdicts entered in their cases.

The facts are simple. Kalleg was driving easterly on Market Street in the city and county of San Francisco, and when he reached the intersection of Market, Franklin and Page Streets he attempted to make a left-hand turn across the west-bound traffic on Market Street. At that point four lines of street-car tracks are maintained. As Kalleg crossed the east-bound tracks and approached the first westbound track he looked to his right, but did not see any

[98]

vehicle approaching. From that point he crossed over the second track and across the west-bound lane of vehicle traffic without looking to his right—the point from which danger might have been anticipated. The defendant was proceeding westerly about four feet north of the most northerly car track where the cars collided. Neither plaintiff saw defendant’s car approaching at any point of their progress.

On the issue of damages the husband claimed that he had suffered a bruised shoulder and some nervous shock, the wife had a slight scar above the right eyebrow, which was fully healed, and also claimed that she had been bruised about the hip. Both children were cut about the face by broken glass.

The verdicts in the parents’ cases are easily explained. Their claims of personal injuries were manifestly feigned and greatly exaggerated. A verdict for either in an amount in excess of their costs of suit would have been a gross miscarriage of justice which the trial court would have necessarily set aside. The evidence of the husband’s contributory negligence, which, of course, must be imputed to the wife, was such that the jury should have found against both on that issue. Hence, again, if substantial ver,-' diets had been rendered in their favor, the trial court would have been compelled to set them aside on this issue as well. Thus when we examine the entire record, including the evidence within the purview of article VI, section 4%, of the Constitution, we cannot say “that the error complained of has resulted in a miscarriage of justice.”