Bertrand v. Pacific Electric Railway Co.

DESMOND, J., pro tern. — Plaintiff appeals from a judgment awarding her the sum of $963.05 and asks that the cause be remanded for a new trial upon the sole question of damages, claiming that “the court erred in finding that the sum of $963.05 was a reasonable sum to be allowed plaintiff for general and special damages, in that there is insufficient evidence to support said finding,” also that error arose when the court found an aggregate sum for damages and refused “to make separate findings on the various items of special damage which were specially pleaded and denied by the defendants and which were in part stipulated to at the trial and in part proved by uncontradicted evidence. ’ ’

The action was one for injuries received by appellant as she was alighting from a street car operated by respondent, and the finding which gives rise to this appeal reads as follows: “That by reason of the negligence and injuries received as aforesaid, plaintiff has expended certain funds for hospitalization, doctors, medical and nurse service, and that by reason thereof, and loss of time, and pain suffered by plaintiff, the plaintiff has been damaged in the aggregate sum of $963.05, which the court finds to be a reasonable sum.”

At the trial the following items of special damage were stipulated to be correct: Hospital bill, $125.95; ambulance, $2.50; nursing, $164.60. Dr. Macklin testified that his bill amounted to $78. The total of these items is $371.05. Just how much of the balance, $592, the trial court estimated was due “for loss of time” mentioned in the finding, or for “pain suffered by the plaintiff, ” is a matter of speculation; although there is a statement in appellant’s opening brief undenied by respondent that the trial judge indicated before the judgment was prepared that the items making up the total included those stipulated to as correct, aggregating $293.05, Dr. Macklin ’s bill $70, loss of earnings $100, and general damage $500, making the total $963.05; that later, when presented with findings showing plaintiff’s inability would extend to a date two years after the accident, and that her earning capacity was $20 per week, the judge refused to adopt them but made the finding to which exception is taken and which lumps the general and special damage.

Because the trial court failed to segregate financially the items “loss of time” and “pain” in its estimate of damage and to make a separate finding as to how much time was lost [9]