Pilcher v. Tanner Motor Livery

NOURSE, P. J. The two plaintiffs were passengers for hire riding in a motor vehicle owned by the defendant corporation and operated by its employee Graves. In crossing an intersection of streets in the city of’1 Los Angeles the vehicle was struck by one operated by defendant Harding. Mrs. Pilcher was thrown from the car and suffered a slight strain in her back. In a trial with a jury plaintiffs had a verdict, for $12,000 against the defendant corporation and Graves. Mrs. Harding had a verdict against the plaintiffs. The appeal is from the judgment on the verdict in favor of the plaintiffs.

Three grounds involving instructions are assigned for a reversal of the judgment, together with a claim of [560]excessive damages. We will confine our opinion to the error of the instructions covering section 113 of the California Vehicle Act, but in passing should add that the verdict of $12,000 against the corporate defendant for the slight injury suffered by Mrs. Pilcher is so grossly disproportionate to the injuries proved that this result, taken with the favorable verdict for Mrs. Harding, who, under all the uncontradicted evidence was equally as guilty of negligence as the other, compels the conclusion that the error herein referred to was prejudicial to these appellants.

There is no material conflict in the evidence covering this issue. Both vehicles approached the intersection at approximately the same time and at a speed in excess of the limit fixed in section 113b. The defendant Harding increased her speed passing through the intersection. The evidence does not show whether the speed of appellants’ car was increased or not. The front part of the Harding car struck the left rear- wheel and left rear fender of appellants’ car in the northeast sector of the crossing. The uneontradictcd evidence presents a set of facts from which the jury might have inferred that if appellants had been driving faster the collision would not have occurred. Hence the error of the instruction that the law presumed them to be negligent.

Section 113b of the California Vehicle Act fixes a speed limit of fifteen miles per hour at intersections similar to that where the collision occurred. In 1931 subdivision (d) was added to section 113, reading as follows: “In any civil action the driver of a vehicle who has operated such vehicle at a speed in excess of the miles per hour set forth in subdivision (b) applicable at the time and place shall not be deemed to have been negligent by reason thereof as a matter of law, but in all such actions the burden shall be upon the opposing party to establish that the operation of such vehicle at such speed constituted negligence.” (Stats. 1931, p. 2121.) On November 2, 1931, when the cause was submitted to the jury, the trial court gave three instructions covering subdivision (b) of this section advising the jury that any violation of that section was negligence as matter of law. The effect of these instructions was to impress upon the jury that appellants were presumed to have been negligent if they traversed the intersection at a