Cooney v. Pirrelli

SEAWELL, J.

On the evening of August 2, 1925, respondent, Frank Cooney, his wife and child and William Aspe and wife, respondent’s stepfather and mother, respectively, and Mr. and Mrs. William Schnorr, father-in-law and mother-in-law, respectively, of respondent, were occupants of a Stephens seven-passenger automobile returning from a trip to Stanislaus County to San Francisco. When near Livermore, Alameda County, respondent, who was at the wheel, pulled off and clear of the paved portion of the highway by two feet, stopped his car, set his brakes and got out to examine the mechanism, which was not functioning properly. The hour was between 8 and 9 o’clock at night. Both front and rear lights were burning. The automatic starter having failed to work, respondent stepped to the front of the car to crank it, when his car was struck with great violence by a Moon sedan machine driven by appellant, who, from some unexplained circumstance, had left the paved portion of the highway and struck respondent’s car from the rear, forcing it forward with such force as to throw respondent down. The car passed over his body, thereby causing the injuries complained against.

[6]

At the trial appellant admitted the allegations of the complaint charging negligence and carelessness on his part and thereby narrowed the issues to the extent of the injuries suffered. The instruction of the court, framed upon the admissions of counsel, is now objected to on the ground that no admission was made that respondent suffered any injuries which were the approximate result of appellant’s negligence. The instruction, together with the colloquy that occurred between court and counsel for respondent at the time said instruction was given, follows:

“You are instructed that by reason of the admissions of negligence made by the defendant, that there is but one issue for you to determine in each of these cases, namely, the amount of damages to be awarded to the respective plaintiffs—I am afraid of that, Mr. Johnson. I will withdraw that instruction.

“Mr. Johnson: The amount of damages, if any, would cure any possible uncertainty.

“The Court: You are instructed that by reason of the admissions of negligence made by the defendant, that there is but one issue for you to determine in each of these cases, namely, the amount of damages to be awarded to the plaintiff Cooney, and the amount of damages, if any, to be awarded to the plaintiff Aspe.