Hughes v. Duncan

STURTEVANT, J.

The plaintiff commenced an action to recover damages for personal injury. The defendant answered and a trial was had before the trial court sitting with a jury. The jury returned a verdict in favor of the plaintiff and from the judgment entered thereon the defendant has appealed and has brought up a bill of exceptions.

At about half-past 9 in the evening on the ninth day of March, 1930, the plaintiff was riding as a passenger in a car driven by Alec Brewer north on San Pablo Avenue between Sixty-fifth Street and Sixty-sixth Street in Oakland. At about the same time the defendant was driving south on the same street. There was some evidence that the defendant’s lights were not burning and that his car was so out of order that it would not respond to the steering-wheel. As the de

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fendant approached Sixty-sixth Street he was traveling on the street-car tracks on the westerly side of San Pablo Avenue. On the southeasterly corner of Sixty-sixth Street and San Pablo Avenue is a service station. The defendant attempted to make a left-hand turn and enter that service station. While his car was slightly west of the service station Brewer’s car approached from the south and a collision occurred.

Defendant complains because the trial court instructed the jury that under certain circumstances the plaintiff could recover for mental pain, mental suffering and mental anguish. He claims there was no proof offered by plaintiff of such suffering. Perhaps not. We will not stop to inquire, because the very next instruction which the trial court gave among other things said: “I am not saying to you that these elements of damage which I am enumerating in these instructions wore proved or not proved by the evidence in this case. I am only saying to you that if you find from the evidence that these elements, or any of them, are established by a preponderance of the evidence, then you may consider these elements in assessing the amount of damages, if any, you award to the plaintiff.” Under such circumstances we think it is clear that the defendant was not injured. The trial court gave to the jury an instruction that if Brewer carelessly operated the automobile in which the plaintiff was riding, that such carelessness would not be imputed to the plaintiff. The defendant quotes some of the record to the effect that when the plaintiff saw that a collision was imminent he reached for the emergency brake. That item of evidence did not render the instruction complained of improper. On the other hand it tended to show that the plaintiff was not directly guilty of contributory negligence.