Bradford v. Brock

SCOTT, J., pro tem. Plaintiffs, heirs at law of Elizabeth Otley, deceased, brought this action to recover damages for her death. She was struck and killed by an automobile driven by defendant Brock, an employee of his co-defendant Stationery Company. The automobile was owned by the employer and the driver was in the course of his employment at the time of the accident. Deceased, in company with a young boy, was crossing Wilshire Boulevard at the intersection of Crescent Heights Boulevard in the city of Los Angeles at about 7:30 o’clock in the evening of January 29, 1930, when the accident occurred, resulting also in the death of the boy. The jury returned a verdict for plaintiffs against both defendants, and from judgment thereupon entered the latter have appealed.

Two instructions given by the court were so prejudicially erroneous that a reversal of the case is necessary. Plaintiffs’ instruction number 14, as it was given, reads: "The court instructs the jury that Elizabeth Otley may have been careless and negligent in receiving injuries which caused death and yet her negligence may not be contributory negligence. It may not be a direct cause, or proximate, and if the injury was inflicted by the defendants without any direct help from the negligence of Elizabeth Otley, then the defendants would still be liable. If the injury or injuries which caused death, if you find that they did cause death, could have been avoided, in spite of Elizabeth Otley’s negligence, if any, by the exercise of due care on the part of the defendants, then the defendants would be liable.” This instruction was contrary to the provisions of Civil Code, section 1714, and section 377 of the Code of Civil Procedure, [49]on which this action was in part predicated. It told the jury in effect that defendants were liable even though they had not been guilty of negligence and even though deceased had been guilty of contribiitory negligence, and is obviously erroneous. Respondents do not suggest that the instruction is correct, and cite no authority to support it. Even when read in connection with the court’s entire charge its harmful error is not mitigated.

Plaintiff’s instruction No. 8, likewise given, is also erroneous, because it gave the jury a wrong measure of damages to apply to the case. Instructions 7 and 8, which were read together, are as follows: (7) “The court instructs the jury: That if you find for the plaintiffs, merely determine from the evidence the probable amount and value of the pecuniary aid, if any, which the said Elizabeth Otley would probably have contributed after the 29th day of January, 1930, if she had not been killed, to the plaintiffs Lillian M. Bradford, Constance E. Britton, Evelyn I. Smith.and Albert R. Otley, and fix the damages, if any you find, in such sum as you find from the evidence if paid in hand at this time would fairly compensate them for the pecuniary loss, if any, resulting to them by reason of the death of the said Elizabeth Otley.” (8) “The court instructs the jury: In estimating such damages, if any, you award the plaintiffs you may and should consider, so far as shown by the evidence, the age and occupation of the said Elizabeth Otley at the time of the injury which caused her death; her bodily health and ability to earn money; her habits as to industry, thrift and economy, if any such have been shown; the contingencies of life such as ill-health, non-employment, increase or diminution in earning capacity as age advances, and all other facts and circumstances in the evidence tending to show the amount, if any, that the estate might have accumulated if she had lived out the term of her natural life, and award plaintiffs such a sum as you believe from the evidence, under the rules herein stated, will be a fair and reasonable compensation for the pecuniary loss sustained by the plaintiffs as a result of their mother’s death.”