Aydlott v. Key System Transit Co.

California Court of Appeal Mar 21, 1930 No. Docket No. 7062.Published

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Holding. The court affirmed the judgment for the plaintiff, holding that the defendant's negligence was established and that the trial court's instructions and evidentiary rulings were not reversible errors. Furthermore, the court held that the defendant waived its right to object to the plaintiff's counsel's misconduct by failing to assign it as error or request an admonition at the time the remarks were made.

Issues

Whether the trial court erred in its instructions regarding the duty of care owed by an interurban railroad at its stopping places.
Whether the trial court erred in its instructions regarding the elements of damages.
Whether the alleged misconduct of plaintiff's counsel constitutes reversible error when no objection was made at trial.
Whether the trial court erred in its evidentiary rulings regarding witness testimony.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It is only the most extreme case where an instruction to the jury, if given, would not remove the effect of improper remarks.”

“The judgment is affirmed.”

THE COURT.

This is an appeal from a judgment upon a verdict in favor of plaintiff and against the defendant for damages for personal injuries alleged to have been sustained by plaintiff when she was run over by one of defendant's trains on January 10, 1927.

The complaint contains three causes of action. The first in substance alleges, that on January 10, 1927, and for some time prior thereto at the intersection of Shattuck Avenue and Blake Street in the city of Berkeley, defendant failed and neglected to pave or fill in the ground between its tracks or to beep the same flush with the surface of the street; that there "were depressions and holes alongside the track; that by reason thereof the tracks, street and station were unsafe and dangerous; that on the date mentioned plaintiff walked toward the track for the purpose of taking passage on one of defendant’s trains and tripped and fell by putting her foot in a depression and hole so that the wheels of the first car passed over both her legs, mangling and crushing them to such a degree that both had to be amputated.

The second cause of action alleges that by virtue of an ordinance of the city of Berkeley defendant was required to plank, pave or macadamize that portion of the street used by its tracks and between the rails and for two feet on each side thereof, and to keep the same constantly in repair and flush with the official grade of the street, which it failed to do.

The third cause of action alleges that defendant carelessly and negligently operated one of its trains along and upon Shattuck Avenue at its intersection with Blake Street, causing the injuries complained of. Damages were claimed in the sum of $200,000.

[625]

Defendant by its answer denied the allegations contained in all the causes of action except the allegation concerning the ordinance and except the fact of an accident, and set up as an affirmative defense contributory negligence on the part of plaintiff.

Trial was had and a verdict in the sum of $75,000 was rendered in favor of plaintiff. It is here claimed that the evidence is insufficient to justify the verdict and judgment. It is further claimed that error in the instructions, prejudicial misconduct of plaintiff’s counsel, and the admission and rejection of certain evidence, justify a reversal of the judgment.

Aydlott v. Key System Transit Co.

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THE COURT.

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