Cook v. Los Angeles Ry. Corporation

SLOSS, J.

The plaintiff appeals from an order denying his motion for a new trial. The action was brought to recover damages for personal injuries sustained by plaintiff as the result of a collision between an automobile driven by him and an electric street-car of the defendant. There was a jury trial and a verdict and judgment in favor of the defendant.

The testimony on the issues of defendant’s negligence and plaintiff’s contributory negligence was sharply conflicting, and no question is made of the sufficiency of the evidence to support the verdict. While it was shown without contradiction that the plaintiff had suffered some physical injuries, there was a good deal of controversy over the extent of these injuries, the defendant claiming that plaintiff was greatly exaggerating their severity. After the accident, the plaintiff was taken to a hospital. There he was attended by two physicians. He also had the care of a nurse. None of these three persons was produced as a witness.

The court gave an instruction in which, after stating that, by reason of the privilege defined in section 1881 of the Code of Civil Procedure, the physicians who had attended plaintiff could not testify without his consent, it charged that if plaintiff had failed to call them as witnesses, and showed no reason for such failure, the law presumed that their testimony would have been against him. A like presumption was declared to arise from the unexplained failure to call the nurse.

These instructions are assigned as error. So far, at least, as the physicians are concerned, the instruction given is in conflict with the views expressed in

Thomas

v.

Gates,

126 Cal. 1, [58 Pac. 315], where it is said, in effect, that the raising of a presumption against a party for the failure to introduce

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or to permit the introduction of testimony which he had the right to exclude as privileged, would go far toward destroying the value of the privilege. But of this instruction, as well as the one relating to the nurse, it is sufficient to say that, if they were erroneous, they were not prejudicial. They dealt with witnesses who could have testified on no subject other than that of the extent of the plaintiff’s injuries. As has been said, the fact that he had suffered some injuries was undisputed. The verdict in favor of defendant could, therefore, have been reached only upon a finding that, by reason of plaintiff’s own negligence or the defendant’s want of negligence, there was no liability for the injuries, whatever their extent. In this state of the record, errors in instructions bearing solely on the amount of damage could not have influenced the verdict, and present no ground for reversal.