KLINE V. SANTA BARBARA CONSOL. RY. Co. (Supreme Court of California, April 2, 1907.) Carriers Carriage of Passengers-Care Required of Carrier.*-A common carrier of passengers must exercise the utmost care, diligence, and foresight of a very cautious person, and is responsible for any injury to a passenger except that occasioned by inevitable casualty or some other cause which human foresight could not prevent. Damages Elements of Damages Injuries to Person.-Where a person injured in a street car accident was rendered to some extent unable to care for herself, and her injury necessitated the hiring of somebody to care for her, such result was an element to be considered in assessing her damages. Appeal Review-Harmless Error-Evidence Inadmissible under Pleadings. The introduction of evidence in a personal injury case as to the extent and permanence of plaintiff's injuries, although inadmissible under the pleadings, was harmless error where the plaintiff had submitted before the trial to a physical examination by surgeons selected by the defendant to ascertain what her injuries were, since the evidence could not have operated as a surprise. Same-Motion to Strike Out-Refusal.-The error in refusing to strike out an opinion of a witness, in a suit for injuries caused by a street car, that the car was moving at "an unpardonable high rate of speed," was not prejudicial where it was conceded that the car had escaped all control and had descended a grade at a dangerous rate. of speed. Evidence Subjects of Expert Testimony-Matters of Common Knowledge. It does not require an expert to testify as to the suffering of an injured person, but the testimony of any one of ordinary intelligence and experience is competent. Appeal-Review-Excluding Proper Evidence-Harmless Error.The improper rejecting of hypothetical questions was harmless error where, by a mere change in the form of the questions, all the evidence sought to be obtained by the rejected questions was introduced. In Bank. Appeal from Superior Court, Santa Barbara County, Felix W. Ewing, Judge. Action by Clemence Kline against the Santa Barbara Consolidated Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed. H. H. Trowbridge and Henley C. Booth, for appellant. *See foot-notes appended to Atchison, etc., Ry. Co. v. Calhoun (Okl.), 22 R. R. R. 791, 45 Am. & Eng. R. Cas., N. S., 791; foot-notes appended to Raymond v. Portland R. Co. (Me.), 22 R. R. R. 476, 45 Am. & Eng. R. Cas., N. S., 476. Kline v. Santa Barbara Consol. Ry. Co BEATTY, C. J. On July 26, 1903, the defendant, a street railway corporation engaged in operating electric cars in the city of Santa Barbara, received the plaintiff, a woman 65 years of age, as a passenger in one of its cars at the terminus of the line immediately in front of the old Franciscan Mission in said city. When the plaintiff boarded the car, she seated herself on one of the rear outside seats, which was long enough to seat three persons comfortably, and which ran parallel with the axis of the car. Immediately in front of he. was a standard carrying a handrail, and extending from the side steps of the car to the roof. After the car had been under way a few yards it gained speed despite the fact that the motorman and conductor applied the brakes, which were of the hand-lever pattern, and when the car-the speed having become greatly accelerated-reached a curve 974 feet from the mission, the lurch of the car in rounding the curve threw the plaintiff from her seat to the ground, causing the injuries for which this action was brought. The action was defended upon two grounds: First. That the loss of control of the car was due to the fact that the county of Santa Barbara shortly before the date of the accident, in applying crude oil to the roadway, had left a puddle of oil at the extreme end of the track, which had become covered with dust; that the car on which plaintiff became a passenger, being an excursion car, was run out to the end of the track to avoid interruption to the regular cars; and that thereby, without the knowledge of defendant, its officers, or the car crew, its wheels and brake blocks had become saturated with oil, and useless as a means of controlling the car on the down grade from the mission to the curve. Second. That the plaintiff was warned of the situation in time to have secured herself from any danger of being thrown off the car by simply grasping the standard post in front of her, and that, having neglected this precaution, she was guilty of contributory negligence. In mitigation of damages the defendant offered to prove that the injuries resulting from the accident would have been much less serious if the plaintiff had been properly treated by the surgeon employed by her. The case was tried by jury and a verdict returned in favor of plaintiff for $8,000. Defendant appeals from the judgment. The record here includes a bill of exceptions embodying the evidence, and the exceptions taken at the trial to the rulings of the court upon objections to evidence, and in giving and refusing requests to charge. The cause was originally transferred for hearing to the District Court of Appeal, where the judgment of the superior court was affirmed. Upon petition of appellant it was ordered to a rehearing in this court, principally for the purpose of giving further consideration to the questions raised as to the correctness of two instructions given to the jury by the trial judge, and approved by the District Court of Appeal. Besides these questions, counsel for appellant insisted at the rehearing, as they did in their petition, upon further consideration of some of their assignments of error, not expressly dealt with in the opinion of the district. court of appeal. The most important of these questions in its Kline v. Santa Barbara Consol. Ry. Co bearing upon this case, and upon other cases likely to arise in which it will be invoked as a precedent, relates to the degree of care required to be exercised by common carriers of passengers, and the duty imposed upon such carriers in the exercise of that care. In submitting the case to the jury the judge of the superior court gave, among others, the following instruction: "Contributory negligence on the part of a passenger cannot be presumed from the mere fact of injury, but must be proved. On the other hand, the proof of an injury to a passenger on the car of a common carrier casts upon the common carrier the burden of proving that the injury was occasioned by inevitable casualty, or some other cause which human care and foresight could not prevent, or by contributory negligence of the plaintiff, unless the proof on the part of the plaintiff tends to show that the injury was occasioned by the contributory negligence of the passenger or by inevitable casualty, or by some other cause which human care and foresight could not prevent." The objection to this instruction is directed to the words: "Occasioned by inevitable casualty or some other cause which human foresight could not prevent. This is construed by counsel as requiring a degree of care which would be the utmost that the human mind is capable of imagining, and such they contend is not the law. But, whatever the instruction may be held to mean, it cannot be denied that this court, in a number of instances, has approved it as a correct statement of the law, so that either counsel are mistaken in their construction, or the rule of law is as stringent as their construction makes it. As long ago as 1859 in deciding the case of Fairchild v. California Stage Co., 13 Cal. 604, Justice Baldwin, delivering the opinion of the court, quoted with entire approval the unanimous decision of the Virginia Court of Appeals that "passenger carriers bind themselves to carry safely those whom they admit into their caches, as far as human care and foresight will go-that is, for the utmost care and diligence of very cautious persons—and, of corse, they are responsible for any, even the slightest, neglect"; ci ing Stery on Bailments, §§ 601, 601a, where that author uses this language: "And the onus probandi is on the proprietors of the coach to establish that there has been no negligence whatsoever, and that the damage or injury has been occasioned by inevitable casualty or by some cause which human care and foresight could not prevent.' his decision has since been approved and followed in several other similar cases, and as to the point under consideration remains unquestioned. In substance the rule there affirmed has been made statute law in section 2100 of the Civil Code, which requires of the carrier of rassengers the use of the "utmost care and dilig "ce." And this as appears from the passage quoted from the Virginia case (Farish v. Reigle, 11 Grat. 711, 62 Am. Dec. 666), and approved by this court, is construed to mean all the care which human foresight will suggest. In another case which was decided before the adoption of the Civil Code, this court cited Kline v. Santa Barbara Consol. Ry. Co section 601 of Story on Bailments as authority for the rule that "carriers of passengers bind themselves to carry safely those whom they take into their coaches or cars as far as human care and foresight will go; that is, for the utmost care and diligence of very cautious persons." Wheaton v. N. B. & M. R. R. Co., 36 Cal. 593. And in that case, the court, after stating the rule proceeded to explain it as follows: "Whether in case of injury they have exercised such care and diligence is to be determined in view of the facts and circumstances which existed prior to the accident, and they cannot be held not to have done so because, after the accident, it may appear that it could have been avoided by precaution which a very cautious person, not knowing that the accident was about to occur, would not have taken. But this form of expressing the rule is not more clear than the bare statement that the carrier must exercise the utmost care, diligence and foresight of a very cautious person." These extracts from the opinions of this court in a stagecoach case, and a street railway case, decided before the adoption of our Civil Code, show that the language of instruction 7 given in this case had not only been approved as a correct statement of the rule of law, but had been explained and construed as the equivalent and no more than the equivalent of the rule enacted in section 2100 of that Code. It cannot be error, therefore, for a trial court, in submitting a case of this kind to the jury, to state the rule in its approved form, and, if counsel have reason to fear that the jury may understand the rule so expressed as requiring more than the utmost caution of very cautious persons, in view of the circumstances known or imputed to the knowledge of the carrier before the accident, they have the right to propose an instruction embodying the proper qualification. Other cases decided since the adoption of the Code rule are in perfect accord with those previously decided. See Jamison v. S. J. & S. Co., 55 Cal. 593. În Treadwell v. Whittier, 80 Cal. 574, 22 Pac. 266, 5 L. R. A. 498, 13 Am. St. Rep. 175, there is a very full review of the authorities on this point, citing not only Story on Bailments, but Cooley on Torts, and a large number of decisions of courts in other jurisdictions, all supporting the rule in terms or substance, as it was given in this case. It was approved in terms in Mitchell v. S. P. R. R. Co., 87 Cal. 64, 75, 25 Pac. 245, 11 L. R. A. 130, and in the very recent case of Boone v. Oakland Traction Co., 139 Cal. 494, 73 Pac. 243. Counsel contends that what was said in the two cases last cited was dictum, because the judgments against the carriers were reversed on other grounds. But it was not dictum-the point was involved in each case, and was certain to arise on the new trial which was ordered. It was therefore a point to be decided, and, being decided, became in each instance the law of the case. Instructions couched in terms similar to those in question may have been disapproved in other jurisdictions, but here the form in which the rule was stated has been so often approved, and the means of preventing its misconstruction or misapplication are so entirely within the power of the defense in actions for damages that this Kline v. Santa Barbara Consol. Ry. Co court could not with any consistency or justice set aside its previous rulings in this class of cases. The propriety of this conclusion could not be more clearly illustrated than it is by the fact that in this case counsel for the defendant asked, and the court gave, the following instruction to the jury: "(5) You are instructed that, while a street railway company does not insure the absolute safety of its passengers, it is the duty of the street railway company, and was the duty of the defendant in this case, to do all that human care, vigilance, and foresight could, under the circumstances, considering the character and mode of conveyance, to prevent accident to passengers; and you are instructed that if the injury to the plaintiff was caused solely by the brakes not working and the reason of the brakes not working was oil on the track, and that the defendant did not know that such oil was on the track at the time of the accident and should not have known in the exercise of such care, vigilance, and foresight, then the injury to the plaintiff was caused by a mere accident for which the defendant is not responsible and your verdict should be for the defendFrom which it appears that so far from questioning the rule at the trial counsel for the defendant requested the court to give it in the very words complained of, with an explanation which freed it completely from the construction which they say renders it erroneous. The following is the eighth instruction, given to the jury at the request of the plaintiff: "(8) If the plaintiff is entitled to recover, the measure of her recovery is what is denominated compensatory damages; that is, such sum as will compensate her for any injury she has sustained. The elements entering into such damages are the following: (1) Such sum as will compensate her for the expenses, if any, she has incurred in caring for and nursing herself during any period she was disabled by the injury, not exceeding the sum of $497; (2) the value of her time while she will necessarily be disabled as the result of the injury; and (3) such reasonable sum as the jury shall award her on account of any pain and anxiety she may have suffered, or will necessarily suffer, by reason of her injury. The first of these elements is the subject of direct proof, and is to be determined by the jury on the evidence they have before them; but the second and third elements are from necessity left to the sound discretion of the jury, however the damages in all cannot exceed the amounts alleged in the complaint." It is contended that the second clause of this instruction contains an erroneous and misleading statement of the law, and that it must have led the jury to render what appellant views as a verdict excessive in amount. The evidence to be considered in determining the propriety of this instruction was to the effect that the plaintiff was a woman, 65 years of age, engaged in no gainful occupation, but capable, before the accident, of taking care of herself, and accustomed to active outdoor exercise. She lived with her married daughters, part of the time in Santa Barbara, with one, and at other times in Alameda with another. The effect of the injuries sustained at the time of the accident was |