Hall v. Pacific Electric Railway Co.

SHINN, J., pro tem. Appeal by defendant from a judgment after verdict in favor of plaintiffs in an automobile and street-car collision case.

The first point urged on the appeal is that two women jurors were prejudiced against the defendant so as to be [458]unable to give it a fair trial, although they denied having any prejudice upon their voir dire examinations. The evidence relied upon to show prejudice consisted of admissions of the two jurors, when called for service upon another jury in a case against the same defendant, that they had feelings of prejudice with respect to said defendant which they thought would prevent their acting as impartial jurors. These admissions were made three days after the verdict was rendered in the present case. The record does not show whether the jurors were prejudiced in favor of or against the defendant, the statements showing only that they entertained a feeling of prejudice. But if we assume, as the defendant does, that the jurors were prejudiced against the railway company, it does not appear from their statements, nor is it a fair inference, that the state of mind they admitted when questioned in the second case was not acquired after the close of the first trial. In the absence of evidence to the contrary, it will be presumed that the jurors were truthful at both times and so were qualified to act as jurors in the present case. Such is the impression we gain from reading the testimony.

The following instruction was given at the request of plaintiffs: “You are instructed that if you find from the evidénce that both Herbert C. Hall and Ann Hall, or either of them, were suffering any ailment prior to the accident in question, and that the accident in question was caused by the negligence of the Pacific Electric Railway Company, then nevertheless the plaintiffs herein are entitled to recover for damages for such aggravation of their preexisting condition as was caused by the accident. If, as a result of the defendant’s negligence, the condition of Herbert C. Hall and Ann Hall was aggravated thereby, they are entitled to recover for damages for such amount as they have suffered by reason of such aggravation of their condition.” The instruction was incomplete in that it omitted the element of contributory negligence. Other and correct instructions were given upon the defense of contributory negligence. The defendant contends that the instruction was a formula instruction and that therefore it should have stated all of the conditions essential to plaintiffs’ right to recover and that the failure to include therein a statement of the doctrine of contributory negligence requires a reversal of the judgment. The general rule is that