Cochran v. Brown

California Court of Appeal Aug 6, 1927 No. Docket No. 5820.Published

Before: Nourse

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Holding. The court held that the evidence supported the jury's finding of negligence against the railroad corporations for operating an unlit streetcar in the dark, and that the trial court's instructions and the jury's damage award were not erroneous.

Issues

Whether the trial court's jury instructions regarding the duty of care for operating a streetcar at night were prejudicial.
Whether the plaintiff was guilty of contributory negligence as a matter of law.
Whether the defendants waived objections to the filing of an amended complaint.
Whether the damages awarded were excessive.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The degree of prudence required of a party is dependent on the nature of the agency employed, as well as the time, place, and circumstances of its employment.”

“The question of what was a reasonable amount of damages to be allowed was one to be determined by the jury and cannot be controlled by the appellate court unless it appears from the record that it was the result of passion or prejudice.”

[745]

NOURSE, J.

Plaintiff sued the defendant Brown and the two defendant railroad corporations for personal injuries suffered in a collision between an inter urban car operated by the corporations and an automobile operated by the defendant Brown, and in which the plaintiff was riding as Brown’s guest at the time of the collision. The cause was tried before the court sitting with a jury and resulted in a verdict in favor of the plaintiff in the sum of $5,000 against the two railroad corporations, and in a verdict absolving defendant Brown from liability. While the motion of the railroad corporations for a new trial was pending the trial court reduced the judgment to $3,000, and upon plaintiff’s waiver of the excess over that amount the motion for a new trial was denied. From this modified judgment the railroad corporations have appealed upon a bill of exceptions.

The collision occurred at about midnight on December 17, 1922, while the plaintiff, riding with the defendant Brown in the latter’s automobile, was attempting to cross Ellsworth Avenue in the city of San Mateo, at the intersection of Tilton Avenue. At that time, and for a long time prior thereto, the defendant corporations were operating an interurban electric car line over Ellsworth Avenue, running from San Mateo to San Francisco. As plaintiff and his companion were crossing the track at this intersection an electric car struck the right rear wheel of their automobile and carried it across the intersection, causing personal injuries to the plaintiff, which are the subject of this suit. At the time it was raining heavily and Brown had isinglass curtains on the right side of his car where the plaintiff sat. When the electric car turned into Ellsworth Avenue, about a block distant from the point of the accident, the trolley became disconnected, causing the lights to go out on the car. The trolley was replaced, but as the car proceeded along Ells-worth Avenue toward Tilton the same thing occurred again. Both the plaintiff and defendant Brown testified that they looked to their right before proceeding across Ellsworth Avenue and that they did not see the car approaching. It was the theory of the plaintiff and the defendant Brown throughout the trial that they were run down by the electric

[746]

Cochran v. Brown

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NOURSE, J.

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