Parmenter v. McDougall

SLOSS, J.

This action was brought to recover damages for personal injuries. The plaintiff, while riding on a motorcycle, in company with his brother, Benjamin Parmenter, was struck by an electric automobile owned and driven by the defendant. The accident occurred at the intersection of Fremont Avenue and Columbia Street in the city of South Pasadena. Fremont Street runs in a northerly and southerly direction. At its northerly end it connects with Columbia Street, which runs easterly and westerly. The defendant was driving her car northerly along Fremont Avenue, intending to turn to the left and go westerly on Columbia Street. The plaintiff and his brother were coming westerly along Columbia Street, and approaching the intersection with Fremont Avenue. The motorcycle belonged to Benjamin Parmenter, plaintiff’s brother. Benjamin was operating the machine, the plaintiff being on the rear seat. As they reached Fremont Avenue, they turned to go southerly down that avenue, and the collision took place at or near the intersection of the two streets. The plaintiff charged that the defendant had negligently made a sharp and sudden turn to the left on coming to Columbia Street, without first crossing to the further side of said Columbia Street, and alleged that this negligence was the cause of the accident. The defendant denied the averments of negligence, and asserted in her answer that the plaintiff had been guilty of contributory negligence.

The action was tried before a jury which returned a verdict in favor of the plaintiff for $7,265. The defendant appeals from the judgment entered on the verdict and from an order denying her motion for a new trial.

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There is no merit in the appellant’s claim that the evidence was insufficient to support a finding of negligence on her part. We shall not undertake to detail the testimony of the various witnesses. As is usual in cases of this character, there was more or less conflict. But, beyond a doubt, there was testimony to the effect that the defendant had made a sudden and unexpected turn to the left, thus bringing her car into collision with the motorcycle. Whether she did act in this way, and whether under the circumstances it was negligence to so act, were questions for the jury.

The appellant makes the point that the verdict exceeds the amount of damages alleged and demanded in the complaint. But it appears that during the trial the parties stipulated that the court might, and the court did, permit plaintiff to amend his complaint to conform to the proof with regard to the amount of damage. While no formal amendment was made, it is apparent that the case was tried upon the theory that the plaintiff might recover any amount of damages actually proven to have been sustained by him.