Boyce v. California Stage Co.

By the Court, Sanderson, C. J.

This action was brought to recover damages on account of personal injuries sustained by the plaintiff by reason of the *466 negligent and careless upsetting of the defendant’s stage coach upon which he was a passenger. The damages were laid in the complaint at fifty thousand dollars, and the jury found a verdict in favor of the plaintiff for the sum of sixteen thousand and five hundred dollars. The defendant moved for a new trial, which was denied. The appeal is from the judgment and order. .

The facts as gathered from the testimony contained in the record are substantially as follows: On the 19th of October, 1861, the respondent paid the usual fare and took passage in one of defendant’s coaches, to be conveyed from Downieville, in Sierra County, to Marysville, in Yuba County. He took a seat on the outside with the driver. The coach started soon after midnight. The moon was near its full, and the night clear and bright. About two o’clock in the morning, the coach was slowly ascending Goodyear’s Bar hill, and was about a mile from the summit. At that point the road curves around a very steep, rocky ravine. The roadway was constructed by digging into the bank on the upper or right, hand side, and building a rock crib about eleven feet in height on the lower side and filling in with rock and earth. A log about eighteen inches in diameter was placed on the edge of the rock crib or wall, and was a little higher than the road. The road was wide enough for the convenient passage of a coach,, mule team or any kind of ordinary vehicle, and the track for the lower wheel was about two feet from the edge of the wall or crib.

As the coach approached this curve, it turned out from the usual track at a small angle, and gradually approached the edge of the wall or crib instead of following around the curve, and tracked along the log nearly its whole length, when, having passed beyond the highest point of its circumference, one of the wheels slipped over the outer side of the log, and the coach, horses and passengers were precipitated down the ravine. The respondent was very severely and dangerously injured, having his lower jaw broken in three places, the upper jaw separated from its bony attachment, his right *467 shoulder dislocated and the right shoulder-blade broken, the skull fractured, the face, mouth and body bruised, contused and wounded. His injuries were of so serious a character as to render him entirely insensible for many days, and for a considerable time to render his recovery doubtful, and were such as to require the removal of portions of the bone of the lower jaw and to produce great and permanent disfigurement.

Up to the time of the trial of the case, more than a year and a half after the accident, he had not acquired the ordinary use of the lower jaw; the right shoulder and arm were stiff and weak and the hand partially paralyzed, being unable to perform any labor except with the left hand. The plaintiff was a laborer by occupation, and the injuries to the right shoulder and arm were of such a character as to permanently impair his capacity for laborious pursuits.

Previously, and up to the time of the accident, he was a strong, healthy man, and had the perfect use of all the members of his body.

I. The first point made by counsel for appellant is to the effect that the verdict is not sustained by the evidence when taken in connection with and confined to the allegation of carelessness and negligence contained in the complaint. And in support of this proposition it is argued that the only allegation of negligence contained in the complaint relates to the manner of driving and nothing else; that there is no evidence which explains the cause of the accident, and that there is evidence furnished by numerous experts which establishes the character of the driver for care and skill, which evidence rebuts the presumption of carelessness and negligence on his part, arising from the fact that the coach was overturned.

Admitting, for the sake of the argument, that the allegation of negligence is as narrow as counsel for appellant- claims it to be, and that the cause of the accident is unexplained by the testimony, and that the general reputation of the driver fin-care and skill is established beyond question by the evidence, it does not follow that the overturning of the coach is to be charged to the account of unavoidable accident, or to some *468 cause which human care and foresight could not prevent, and therefore the defendant excused from all liability for the consequences to the plaintiff. The argument places the burden of explanation upon the shoulders of the plaintiff; but, unfortunately for the argument, the law places it upon the shoulders of the defendant. Upon the trial of an action of this character, it is only necessary for the plaintiff to prove the overturning of the coach and the injuries caused thereby. Having done this he may rest, for the presumption is that the overturning occurred through the negligence of the coachman, and the burden of proving that there has been no negligence is cast upon the defendant. How the overturning occurred is no part of the plaintiff’s case. The fact that the coach did overturn is all that he need establish in order to recover for such injuries as he may have sustained. In order to rebut this presumption of negligence, the defendant must show that the overturning was the result of inevitable casualty or of some cause which human care and foresight could not prevent, for the law holds him responsible for the slightest negligence, and will not hold him blameless except upon the most satisfactory proofs. In doing this the defendant must necessarily explain how the overturning occurred, and if he fails to do this the presumption of negligence remains. Proof of the general reputation of the coachman for care and skill is not alone sufficient. Such proof, unaccompanied by any other, only serves to make the cause of the overturning still more inexplicable. And if the pleadings centre all the negligence upon the driver, such proof is still insufficient, because the law requires the defendant to show that the coachman was not only careful and skilful, but that he used that care and skill to the best of his ability on the occasion in question. Counsel, by admitting that the overturning occurred, to the personal injury of the plaintiff, and that such overturning is unexplained by the evidence, admits that a cause of action has been established, against which he has shown no defense. And we think, whether the complaint does or does not narrow the issue of negligence to the manner in which the coach was driven, is wholly innna *469 terial so far as the point under consideration is concerned. The plaintiff did not undertake to prove where the negligence rested, nor did the law require him to do so ; and in our judgment the defendant failed to show that it did not rest where he claims the complaint had placed it. At the point where the overturning occurred the road formed the arc of a circle. Instead of moving on the arc the team took the chord, and went so near the precipice as to allow the wheels to run off. There was no such abrupt turning out of the beaten track as would probably result from a sudden fright; on the contrary, the team seems to have moved in a straight line, or nearly so, instead of following the curve of the road. They were going up hill and moving in a slow walk. One cannot read the evidence in connection with the diagram contained in the record without coming to the conclusion that the overturning which caused nearly fatal injuries to the plaintiff, and death to some of the other passengers, was the result of careless inattention on the part of the coachman in not keeping his team in the road. This could not have happened from his inability to see the road, for it was a clear moonlight night, but it is most probable from the evidence that his inattention was the result of drowsiness, induced by the hour and the use of too much liquor.

II. The defendant, upon the trial, asked the Court, among others, to give the following instructions :

1. “ That in order to find for the plaintiff, the jury must find that the stage coach was driven in a “ careless, negligent or unskilful manner.” The Court, upon its own motion, added after the word manner, “ or that there was some fault on the part of the proprietors.”

2. “ If the jury believe, from the testimony, that the coach was upset by the act of the horses, as in becoming frightened, or from other cause which was not the fault of the driver, then they should find for the defendant.” The Court added to this instruction, after the word “ driver,” the words “ or proprietors.”

8. “ If the jury find from the testimony that the driver *470 (Miles Nesmith) was a person of competent skill and in every respect qualified, and suitably prepared for the business in which he was engaged, and the accident was occasioned by no fault or want of skill or care on his part, then the defendant is not liable in an action for damages in this case, and the jury should find for the defendant.” To this the Court added, after the words “ on his part,” the words “ or the proprietors.”

Counsel for the appellant insists that if the foregoing instructions were correct in law, the Court was bound to give them as asked, without any modification which would alter their sense, and in support of that proposition cites Conrad v. Lindley, 2 Cal. 173; Russell v. Amador, 3 Cal. 400 ; and Jamson v. Quivey, 5 Cal. 490.

To those cases, so far as they may be construed to uphold the doctrine that a party may of right insist.that an instruction shall be given or refused, as ashed, and that a modification thereof by the Court, whether right or wrong, is of itself error, we are unable to give our assent. It is the duty and province of the Judge to expound the law, and it is his right and privilege, in doing so, to select and make use of such language and illustration as, in his judgment, is best calculated to exjrlain the same and render it clear to the comprehension of the jury. Upon him the law imposes the duty, and he may determine the manner of its performance. Counsel may propose such instructions as their wisdom may suggest, and submit them to the Judge; but beyond this they have no legal right to dictate to the Judge either the form or substance. If, in the opinion of the Judge, such instructions are defective in form or expression, or erroneous in law, he may, at his election, modify them in either particular, and give them to the jury in their modified form, or he may refuse to give them altogether. If error be assigned upon such instruction, the test question is .not, Did the Judge modify the instruction ? On the contrary, the test is the same as in other cases, and is to be applied to the instruction in its modified form; and if it appear that the instruction as modified correctly states the law, no error has intervened. This Court passes upon instructions, so far as *471 they are given, in the form, in which they were received by the jury; and the fact that they were prepared by counsel, and, before given, modified by the Court, cannot be regarded as error per se, or as having any bearing whatever upon the question of error. (Long v. Rogers, 19 Ala. 321.)

It is next claimed that the instructions as modified are erroneous, becau'se they are broader than the issue of negligence tendered in the complaiút and instruct the jury in effect that they need not confine their deliberations upon the question of negligence, solely to the manner in which the coach was driven, but may go beyond the driver in search of negligence, and inquire from the evidence whether the defendant was in fault in other particulars than the mere manner of driving.

In support of this position it is argued that the allegation of negligence, as contained in the complaint, does not embrace the. whole field of the defendant’s obligation and duty, but is narrowed, by the language used, to the carelessness and negligence of the coachman in managing and driving his team ; that under this allegation the plaintiff could not recover if the overturning was the result of negligence other than careless driving, and that therefore the inquiries of the jury should have been confined by the Court to the manner in which the coachman performed his duty.

The allegation in question is expressed in the following terms: “ And this plaintiff further avers that the said defendant then and there received this plaintiff as such passenger in said coach and then and there undertook, and it became its duty to use due and proper care to carry and safely convey in the said stage coach this plaintiff from Downieville to Marysville, via Goodyear’s Bar and Forest City ; yet the said defendant, regardless of its duties and undertakings, did not use proper care in the transportation of this plaintiff, but suffered and permitted the stage coach to be driven without due care and attention, and in so careless, negligent and unskilful a manner that,” etc.

So far as what transpired at the trial can be gathered from the record, both parties and the Court, up to the time the *472 defendant submitted his instructions, proceeded upon the theory that there was nothing in the complaint restricting the field of inquiry. There was no evidence, however, except in one particular, which tended in the least to fasten blame anywhere except upon the driver. There was some slight testimony as to the character of the nigh wheel-horse and tending to show that he was inclined to shirk the performance of his share of the labor. Being upon the side of the precipice over which the coach and team were precipitated, it is possible that the failure of this horse to perform his duty may have had a slight tendency to swing the team and coach toward the bank, and thus in a measure the unfitness of this horse may be said to have contributed to the overturning of the coach. If the horse was unfit, and his unfitness contributed to the accident, the fault so far did not originate with the driver but with the defendant. But to this evidence counsel for the defendant did not object at the time, nor did he afterwards move the Court to strike it out upon the ground of variance. On the contrary he introduced evidence for the purpose of contradicting it and establishing the fitness of the horse. When the Judge came to instruct the jury upon the application or on behalf of the plaintiff, he did so upon the theory that the whole field of the defendant’s obligation and duty was open for investigation by the jury, and that they were not confined to the manner of driving; yet to these instructions counsel took no-exception. On the contrary, the first four instructions asked by defendant, and given by the Court, proceed upon the same theory, and the modifications of the Court were only such as were necessary in order to make the defendant’s instructions consistent with each other and in harmony with those which had been already given without objection.

Admitting then the narrow construction put upon the complaint by counsel for appellant to be correct, and that a slight portion of the testimony is at variance with the allegation, we think the defendant by his course at the trial waived the objection, or, in other words, failed to take advantage of it at the proper time. But it is not necessary to rest our *473 decision wholly upon this ground. In our judgment the testimony shows beyond question that the whole fault lay with the coachman, and beyond his misconduct no fault attached to the defendant, and this is made so clear by the circumstances of the case in evidence that it cannot be presumed that the jury based their verdict upon any other ground of negligence than that averred in the complaint. The evidence against the horse was very slight, and the probability that his laziness contributed to the catastrophe still more so. Moreover, the testimony was successfully contradicted by the defendant, and with no show of reason can it be claimed that it had any influence upon the verdict. Such being the case, the instructions in question could not have misled the jury and put them upon a false scent. If there was any error, we are of the opinion that it did not prejudice the defendant’s case.

III. It is next claimed that the verdict is a chance verdict, within the meaning of the second subdivision of section one hundred and ninety-three of the Practice Act.

Admitting, as claimed by counsel, that the amount of damages given by the jury was ascertained by each marking a sum which he thought proper, then adding the several sums and dividing by twelve, and that it had been previously agreed that the quotient, whatever it might be, should be their verdict without further consultation, still, as we have decided in Turner v. The Tuolumne Water and Mining Company, 25 Cal. 397, such verdict was not a chance verdict within the meaning of that section; and, although vicious, its character in that respect could not be established by the affidavits of the jurors who tried the case. There is no other evidence offered in support of the charge than that which comes from the jury, and it follows that the verdict stands unimpeached.

Nor can we disturb the verdict upon the ground that the damages are excessive. The rule upon this point is well stated by Mr. Justice Wilde in Worster v. Proprietors of Canal Bridge, 16 Pick. 547 : “ In all cases where there is no rule of law regulating the assessment of damages, and the amount *474 does not depend on computation, the judgment of the jury, and not the opinion of the Court, is to govern, unless the damages are so excessive as to warrant the belief that the jury must have been influenced by partiality or prejudice, or have been misled by some mistaken view of the merits of the case. In the present case, the plaintiff was exposed to the imminent peril of his life, to great 'bodily and mental suffering, and we cannot say that the sum assessed by the jury exceeds a reasonable compensation. We do not consider whether or not we should have assessed the same amount of damages, if the case had been submitted to the Court to decide; for, in a case like the present, men of sound judgment may differ not a little in estimating the compensation which the circumstances of the injury would justify; and it is the judgment of the jury, and not that of the Court, which must govern. To justify the interposition of the Court, the damages must be manifestly exorbitant.”

We see nothing in this case to warrant the belief that the verdict is the fruit of passion or prejudice. (Aldrich v. Palmer, 24 Cal. 513.)

Judgment affirmed.