Opinion
Rehearing Denied April 27, 1927.
Hearing Granted by Supreme Court May 26, 1927.
Appeal from Superior Court, Shasta County; Walter E. Herzinger, Judge.
Action by Henry Alan Martin, a minor, through his guardian ad litem, P. R. Merrill, against the Pacific Gas & Electric Company. Judgment for plaintiff, and defendant appeals. Affirmed on condition of remittitur. COUNSEL
Carr & Kennedy, of Redding, and T. J. Straub, of San Francisco, for appellant.
Jesse W. Carter, of Redding, for respondent.
OPINION
PLUMMER, J.
Plaintiff had judgment in the sum of $25,000 in an action for personal injuries, and the defendant appeals.
As grounds for reversal herein, the appellant sets forth 8 specific reasons, which, for convenience, we will reclassify, as a number of them appear to be divisions of subjects which may be considered as one. We will consider them in the following order: (1) The alleged error of the trial court in admitting evidence regarding the construction and condition of the defendant’s power line preceding the event of plaintiff’s injury. (2) That the court erred in admitting testimony outside of the issues tendered by the pleadings. (3) That the court erred in its instructions to the jury. (4) That the verdict of the jury was and is excessive. All the other errors assigned may properly be considered in connection with the main subjects just enumerated.
The plaintiff was injured on the morning of December 24, 1922, at Cottonwood, in Shasta county, by coming in contact with a power line charged with electricity belonging to and maintained and operated by the defendant in serving a pumping plant near by with electrical energy. The wire of the power line with which the plaintiff came in contact had broken and fallen across the sidewalk area of a certain street in said town known as Chestnut street. This wire remained on the ground unguarded and charged with electricity for several hours, to wit, from some time early in the morning of said day until after the injury of the plaintiff, which occurred at about 10 o’clock on the morning of said 24th of December. Preceding the fall of the wire there had been a heavy snowfall. The circumstances preceding the injury of the plaintiff and the specific act of negligence upon which this action is founded can be best explained by here setting forth the allegations of the plaintiff’s amended complaint involved in the questions to be considered, to wit:
"V. That on or about the 24th day of December, 1922, and for several months prior thereto, the said defendant carelessly and negligently had constructed, kept, maintained, and operated the said electric wire power line through the limbs and branches of a tree, situated on the sidewalk on said Chestnut street, near the southeast corner of the yard fence of the ‘Ogburn residence,’ in said town of Cottonwood; that said electric wire power line was so constructed, kept, maintained, and operated through the limbs and branches of said tree that the wires thereof came in contact with the limbs, branches, and leaves of said tree and caused the same to arc, burn, rub, and cut said limbs, branches, and leaves; that for approximately three weeks continuously prior to the said 24th day of December, 1922, some of the limbs and branches of said tree had broken and fallen over said wires, causing the same to droop, sag, and break and thus greatly endangering the life and limb of persons passing under said tree and said electric wire power line on said sidewalk; that as a result of said wires coming in contact with the limbs and branches of said tree and the limbs and branches thereof falling and bearing upon said wires, and said wires arcing, burning, rubbing, and cutting said limbs and branches, one of said wires broke and fell to the ground, and remained thereon at or near said sidewalk from about 6 o’clock a. m., until 12 o’clock m., on the said 24th day of December, 1922; that said wire remained connected on one end with the said electric wire power line and was, during all of said time, heavily charged with electricity, which said charged wire was so exposed and unguarded as to permit pedestrians to come in contact with it, all of which the said defendant well knew; that said broken wire lying on the ground near said sidewalk, as aforesaid, was at all of said times owned by and under the control of said defendant.
"VI. That on the said 24th day of December, 1922, and at about the hour of 10 o’clock a. m. of said day, while the said minor, Henry Alan Martin, was walking along the sidewalk on said Chestnut street, at or near the corner of the yard fence of said ‘Ogburn residence,’ while walking within the limits of said Chestnut street, and on and along the pathway generally traveled by pedestrians, he, the said minor, came in contact with said live wire so lying on the ground, as aforesaid, and thereupon and thereby the full charge of electricity then carried by said wire passed through the person of said minor, and said minor was thereby knocked down and very severely burned at various points on and about his body, his head, his hips, and arms; that his right arm, hand, and fingers were so badly burned that it became necessary to amputate the index and middle finger and thumb of his right hand, and the same were amputated; that the right hand and arm of said minor were so badly burned that the same are now shrinking and shriveling and are less than their normal size, and said minor has lost the strength and full use of said right hand and arm.
"VII. That by reason of said injury and said burns, said minor was made ill and was confined to his bed for several weeks, and during all said time suffered and still suffers great and excruciating pain, and by reason of said burns plaintiff has been maimed and disfigured and permanently deprived of the full use and strength of his right arm and hand, and plaintiff is informed and believes that his injuries are permanent, and that he will continue to suffer great and unusual pain and mental anguish for a long time to come.
"VIII. That said plaintiff, Henry Alan Martin, suffered and received said injuries hereinabove mentioned wholly by reason of the carelessness and negligence of said defendant in permitting said electric power wire to remain upon the ground at the time and in the manner aforesaid."
Immediately upon the impanelment of the jury to try this case defendant in open court made and entered the following admission:
"The Pacific Gas & Electric Company desire to admit that on the morning of December 24, 1922, one of its wires fell, and that the defendant thereafter negligently permitted the wire to remain on the ground until the time alleged in the complaint, and that Henry Alan Martin, the plaintiff in this action, was injured as a result of such negligence.
"We have made this admission in the interest of shortening the trial of the case, believing that the circumstances justify it; and we will then go to the jury with the sole issue as to the nature and extent of the injuries, and the amount of just compensation to which the plaintiff is entitled."
Notwithstanding the allegations contained in paragraph VIII of the plaintiff’s amended complaint and the admissions of the defendant, the trial court permitted the plaintiff to introduce testimony that for a considerable period of time, ranging over something like three years, the defendant had maintained its line in such a place and course that the wires thereof ran between the limbs of a certain eucalyptus tree; that the wires running between the branches of said tree rubbed against the same, causing the electricity with which the wires were charged to arc, thereby emitting flashes of light; that about the 9th day of December, 1922, there was a snowfall of about four inches in the vicinity of the town of Cottonwood; that the weight of the snow caused some of the limbs of the said eucalyptus tree to bend and break and drop over on the wires of the power line maintained through said trees by the defendant to such an extent that one of the wires broke and fell to the ground; that this broken wire was repaired by an employee of the defendant; that nothing, however, was done toward the removal of the limbs or branches of the tree, or to safeguard the wires running between said branches, and that this condition continued from the 9th to the 24th days of December, 1922. Some seven different witnesses were called by the plaintiff, who testified as to the condition of the power line, as it had been maintained for a long period of time preceding the 24th day of December, 1922, the several witnesses all repeating in detail the substance of which we have stated generally, relating to the previous erection and maintenance and condition of the power line, or lines belonging to the defendant. All of the testimony relating to the condition of the wires belonging to the defendant, the manner of its maintenance, etc., was objected to by the defendant on the ground that it did not tend to prove any of the issues involved in the action; that the specified act of negligence which led to the plaintiff’s injury being particularly set forth in such manner as to exclude any general acts of negligence, and being admitted by the defendant, all other questions were irrelevant, immaterial, and incompetent. The plaintiff, having alleged in paragraph VIII that the injury of the plaintiff was caused "wholly by reason of the carelessness and negligence of said defendant in permitting said electric power wire to remain upon the ground at the time and in the manner aforesaid," and the defendant having admitted such act of negligence, and that the plaintiff was injured by reason of the defendant having negligently allowed the power wire charged with electricity to remain in its fallen condition across the sidewalk in the town of Cottonwood, there was nothing for the jury to determine or pass upon save and except the amount of damages that should be awarded, and that testimony as to any previous condition of the wire, its having fallen at a previous time, or any negligence in its maintenance could only have one effect, to wit, arouse resentment or passion on the part of the jury.
The effect upon the jury of the admission of such testimony may be inferred by considering the following excerpt taken from the argument of counsel in urging upon the trial court the admissibility of such testimony:
"We claim that the defendant is guilty of negligence. Now, the facts which would impute knowledge of the conditions to the defendant would be necessary in order to prove negligence. Now, if the condition has existed here for a period of over three years, even if that condition had not been brought home to them, knowledge of that condition is to be imputed to them-to the defendant-and we desire to show that they knew all about it for over three years and never raised a hand to correct, and the question of knowledge is relevant in all those cases. In a case of this kind we have the right to show that this defendant knew of this condition and, having knowledge, they were negligent in not correcting it. We are not trying to show any previous damage done to any one, but are showing that this was a condition they knew of, and it would have been the part of prudence for them to have repaired it and they did not do it. The same question was involved in the case of Smith v. San Joaquin Light & Power Co., 59 Cal.App. 647, 211 P. 843-they knew it, but didn’t repair it. It seems to me that over the entire period it was a series of negligence, and that we have right to show it, whether it was a day, week, a month or a year, or three years, as was the fact in this case."
It is apparent that counsel was placing before the jury a series of negligent acts, irrespective of paragraph VIII, which specifically confined plaintiff’s injury wholly to one cause, and that cause being admitted, former acts of the defendant, or prior condition of the wires belonging to defendant, were entirely outside of the issues tendered by the complaint. Knowledge of the fact of there being a fallen wire could, of course, be imputed to the defendant by proving the length of time that it remained upon the ground, but, in this case, it was first proved and not denied by the defendant that some hours before the injury to the plaintiff occurred the employees of the defendant at the station where the power could be turned off of the wire had been informed that the charged wire was lying across a sidewalk in the town of Cottonwood, and that such employees had neglected to turn off the power. This was established, and not denied. The allegations of the complaint and the admissions of the defendant were to the effect that the plaintiff was injured by the fallen wire, and that his injuries were wholly due to the negligence of the defendant in allowing the wire to remain charged across the sidewalk, and, therefore, whatever had occurred prior to the falling of the wire and whatever acts of negligence the defendant may have been guilty of prior to the negligence, allowing the wire to remain across the sidewalk, and thereby causing the plaintiff’s injuries, were not involved in any issue to be tendered to the jury. The defendant, prior to the filing of defendant’s answer to the plaintiff’s complaint, moved to strike out as surplusage all that portion of the amended complaint relating to previous acts of negligence and the manner of its maintenance of its wires other than that portion of the complaint specifically alleged to be wholly the cause of plaintiff’s injuries. This motion was denied and is also set forth as one of the grounds of error, which is properly considered by what is hereafter said and governed by the authorities cited.
Section 1868 of the Code of Civil Procedure provides as follows:
"Evidence must correspond with the substance of the material allegations, and be relevant to the question in dispute. Collateral questions must therefore be avoided. It is, however, within the discretion of the court to permit inquiry into a collateral fact, when such fact is directly connected with the question in dispute, and is essential to its proper determination, or when it affects the credibility of a witness."
From what has been said it will be perceived there was no collateral fact pertinent to a decision of the issue before the court under which inquiry as to previous occurrences might properly be had, nor was anything that had occurred in the past connected with the question in dispute, to wit, the amount of damages that the plaintiff was entitled to recover. Nor was there anything that called for the admission of such testimony affecting the credibility of witnesses. The injuries suffered by the plaintiff could neither be augmented nor lessened by the testimony concerning previous acts of negligence on the part of the defendant. The cause of the injuries suffered by the plaintiff, having been limited and circumscribed to a specific act, eliminated all matters of previous general negligence, even though the plaintiff, in the discretion of the court, be allowed to make proof of the specified act, rather than rely upon the defendant’s admission.
As stated in the Estate of Boyes, 151 Cal. 143, on page 147, 90 P. 454, 456:
"One of the elemental rules of the law of evidence is that the evidence must correspond with the allegations and be confined to the point at issue. Code Civ. Proc. § 1868. If not, it is said to be irrelevant. 16 Cyc. pp. 847, 1111; 1 Taylor on Evidence, § 217."
In the case of Frascona v. L. A. Ry. Corp., 48 Cal.App. 135, 191 P. 968, the court held:
"In an action for damages for personal injuries alleged to have been caused by the negligence of the defendant, a common carrier of passengers, while plaintiff was a passenger on one of its street railway cars, where the complaint alleges one distinct and specific act of negligence, namely, starting the car before plaintiff had alighted, a general finding that defendant operated its car in a careless and negligent manner, thereby injuring plaintiff, is not responsive to the issue as tendered by the complaint; and the failure of the court to find on that issue is prejudicial error requiring a reversal of a judgment in favor of plaintiff."
Thus, in the case at bar, the issue upon which the plaintiff could prevail was the issue tendered in paragraph VIII of the amended complaint and was the only issue upon which a judgment could be based and therefore the only one upon which testimony would be pertinent.
The rule governing the admission of testimony in negligence cases is thus stated in 19 Cal.Jur. p. 687, § 110:
"Under a general allegation of negligence, plaintiff may show the particular act which caused the injury complained of and is entitled to instructions upon every one of the probative elements pertinent to the rights and liabilities of the parties. Likewise, where a general allegation of negligence is followed by an enumeration of specific acts, the pleader is not limited to proof of the specific acts alleged unless his pleading clearly indicates an intention to so limit his proof; and this is true even though the specific acts pleaded precede the general allegation. However, if a pleading is specific, setting forth in detail specific acts in connection with which negligence is claimed, proof is limited to acts so pleaded."
To the same effect is 20 R. C. L. p. 177, § 146. Thus, the plaintiff is not limited in the first instance to alleging specific acts of negligence, but, as stated in Cal.Jur., if, in pleading his cause of action, the plaintiff specifically bases his grounds of complaint upon a particular act, proof is limited to the act so pleaded, to which the plaintiff’s injuries are attributed. In St. Louis & S. F. Ry. Co. v. Simmons (Okl. Sup.) 250 P. 510, the court thus states the rule on the admission of the testimony we are considering:
"We think the rule recognized by the authorities generally, and by this court, is that, when a general allegation of negligence is followed by an enumeration and averment of specific acts of negligence, plaintiff is confined to the acts of negligence specifically alleged. 21 R. C. L. 501; McManamee v. Missouri Pacific Ry. Co., 135 Mo. 440, 37 S.W. 119; Haley v. Missouri Pacific Ry. Co., 197 Mo. 15, 93 S.W. 1120, 114 Am. St. Rep. 743; C., R.I. & P. Ry. Co. v. Wheeler, 70 Kan. 755, 79 P. 673."
In Shipley v. Nelson, 121 Wash. 39, 207 P. 1046, the Supreme Court of Washington holds:
"Where there is a general allegation of negligence in a complaint which is followed by a specification of the acts of negligence complained of, or where negligence is specifically set out without any general allegation, the evidence must be confined to the specific issue so presented in the pleadings."
The same court, in Ennis v. Banks, 88 Wash. 237, 152 P. 1037, stated:
"Plaintiff having charged the appellant with a specific act of negligence cannot, under that charge, introduce evidence of other acts and attempt to show negligence therein, although she is not obligated to plead her evidence or set out in detail specific acts."
These cases point out the reasons for the rule, it being held that, the plaintiff having elected to base the cause of action upon specified acts, the defendant cannot be expected or required to meet other acts of alleged negligence not involved in the determination of the issue before the court. In Moore & McFerren v. Fletcher, 145 Tenn. 97, 236 S.W. 924, the Supreme Court of Tennessee thus states the rule:
"Where a pleader undertakes specifically to set forth the acts of negligence which constitute the proximate cause of the injury, he cannot rely on other acts of negligence."
See, also, Davis v. Texas Co. (Tex.Civ.App.) 262 S.W. 129, 22 C. J., p. 744.
Notice not being involved, negligence or the absence of it cannot be proved by similar instances. Steinberger v. Cal. Electric Co., 176 Cal. 386, 168 P. 570. To the same effect is Starr v. Los Angeles Ry. Corp., 187 Cal. 270, where, on page 281, 201 P. 599, 603, it is said:
"Evidence as to the previous conduct and habit of the conductor as to sitting down and talking to passengers was improperly received, not only because of the fact that the matter was not in issue, but also because of the fact that his habit was not competent (Langford v. San Diego Electric Ry. Co., 174 Cal. 729, 732, 733 [164 P. 398]; Steinberger v. California Elec., etc., Co., 176 Cal. 386 [168 P. 570]) to establish the condition at the time of the accident. We need not here consider the effect of the exception to this general rule considered in Wallis v. Southern Pacific R. R. Co., 184 Cal. 662 (15 A. L. R. 117, 195 P. 408), where circumstantial evidence only is relied upon, and there are no eyewitnesses."
See, also, Manwaring v. Geisler, 191 Ky. 532, 230 S.W. 918, 18 A. L. R. 192.
The negligence not in issue, and not involved in the specific act alleged to be the cause of the plaintiff’s injuries, should not have been presented to the jury, either by way of testimony or argument. In Taylor v. Spokane P. & S. Ry. Co., 72 Wash. 378, 130 P. 506, where the negligence alleged was admitted by the defendant, the Supreme Court of Washington held it was error to permit plaintiff’s counsel to discuss the question of negligence in presenting the cause to the jury. The same case was previously before the court and reported in 67 Wash. 96, 120 P. 889. In the first opinion it was held error to permit argument upon admitted facts, but not sufficiently prejudicial to warrant reversal. Upon rehearing a reversal was ordered.
In paragraph VI of plaintiff’s complaint a detailed statement is made of all and singular the injuries suffered and sustained by the plaintiff by reason of the negligence of the defendant, without any allegations of general bodily injuries, such as are frequently set forth in actions for negligence, where the plaintiff does not by his pleadings confine himself to any particular injurious results. This difference in pleading is illustrated by the case of Samuels v. Cal. Street Cable R. Co., 124 Cal. 294, 56 P. 1115, where the complaint alleged the injuries suffered and the bodily condition resulting therefrom in such manner as to admit the widest possible range of testimony and put the defendant upon notice and inquiry as to all the injuries that could be traced to the act of negligence alleged. Without any such pleading in this case, the court, over the objection of the defendant, permitted the plaintiff to introduce testimony as to the plaintiff suffering from endocarditis (affection of the heart), chorea (St. Vitus dance), and possibility of cancer. Under no state of the pleadings could testimony as to what might possibly occur be held admissible. Section 3283, Civil Code, reads:
"Damages may be awarded, in a judicial proceeding, for detriment resulting after the commencement thereof, or certain to result in the future."
The rule is well settled that only the natural results can be considered in awarding damages. The necessary results do not have to be pleaded, but the evils which are not necessary results, but are the natural and probable results of an injury, must be specifically pleaded. As set forth in 8 Cal.Jur. p. 889:
"The defendant cannot be presumed to be aware of the damage naturally, though not necessarily, resulting from his act, and, therefore, in order to prevent a surprise on him, this sort of damage must be specially set forth in the complaint, or the plaintiff will not be permitted to give evidence of it" (citing a number of cases).
Likewise, in 8 R. C. L. p. 611, it is said:
"General damages, that is, such as necessarily result from the injury complained of, need not be specially pleaded."
And on page 612 of the same volume the rule is further set forth:
"That special damages, that is, damages which do not necessarily result from the injury complained of, must be specially pleaded, except where they are conclusively presumed from the facts stated," the reason for the rule being set forth. It is further said in the same volume, pages 620, 621, that the plaintiff may allege his injuries in such a manner as not to require specific allegations:
But, "if the complaint specifies the injuries received, then proof cannot be given of any other injuries, unless they necessarily and immediately flow from those named."
Here the complaint specifies all the injuries received, and there is nothing in the record either by way of allegation or testimony showing that endocarditis, chorea, or cancer, either one or all three, necessarily follow in the wake of the injuries alleged.
In 17 C. J. p. 107, the text, supported by a long list of authorities, is as follows upon this subject:
"In actions for personal injuries, where injury is alleged, a recovery may be had for the natural and probable consequences thereof, although such consequences are not set up in detail, while all effects not the natural and necessary result of the injury complained of constitute special damages, and must be specially averred."
As stated in Gomez v. Reed, 178 Cal. 759, quoting from page 763, 174 P. 658, 660:
"Damages which are the necessary consequence of the wrongful act can be recovered under the general allegation of the amount of damage inflicted. Treadwell v. Whittier, 80 Cal. 579 (13 Am. St. Rep. 175, 5 L. R. A. 498, 22 P. 266). *** And if damages ensue because of some particular circumstances existing at the time, though the natural consequences of the wrongful act in connection with the special circumstances, the facts must be specially alleged."
In Sloane v. Southern Cal. Railway Co., 111 Cal. 668, 44 P. 320, 32 L. R. A. 193, where the plaintiff sought to recover for special injuries not the necessary consequence of the defendant’s acts, it was held that it was necessary to allege the same. In Morris v. Allen, 17 Cal.App. 684, 121 P. 690, in dealing with the subject of special damages, the court holds:
"General damages are those which necessarily result from the act complained of, and may be shown in evidence under a general allegation of damages. Special damages are those that are the natural, but not the necessary, result of the act complained of, and not being implied by law, they must be particularly pleaded and proved."
The same rule was followed in the case of Ryan v. Oakland Gas, etc., Co., 21 Cal.App. 14, 130 P. 693, where the distinction is made between mental suffering and mental impairment, holding that in order to admit proof of mental impairment there must have been such an allegation in the complaint. Likewise, in McCready v. Bullis, 59 Cal.App. 286, 210 P. 638, it is said:
"When the damages are special-that is, such as do not necessarily arise, or are not implied by law, from the act complained of-the facts out of which the damages arise must be averred in the complaint."
See, also, Yoakam v. Hogan, 198 Cal. 16, 243 P. 21; 5 Enc. of Pleading & Practice, p. 719. In Hall v. Manufacturers’ C. & C. Co., 260 Mo. 351, 168 S.W. 927, Ann. Cas. 1916C, 375, the rule relating to pleading and evidence relative to general and special damages is clearly set out in the following excerpt:
"General damages are those which necessarily and by implication of law result from the act or default complained of. *** Special damages as contradistinguished from general damages have been defined as those which are the natural but not the necessary result of the act complained of." 8 Am. & Eng. Enc. of Law (2d Ed.) 542, 543; Brown v. Hannibal, etc., R. Co., 99 Mo. 310, 12 S.W. 655; Nicholson v. Rogers, 129 Mo. 136, 31 S.W. 260.
Special damages, which are the natural but not necessary result of the injury complained of, must be specially alleged. Such injuries do not necessarily result from the defendant’s wrongful act, but flow from it as a natural and proximate consequence; hence the defendant may have notice thereof and be prepared to meet the same upon the trial. 5 Enc. Pl. & Pr. 719, and numerous cases therein cited; Brown v. Railroad, supra; Nicholson v. Rogers, supra; Bliss on Code Pleading (3d Ed.) par. 297a, 297b; 13 Cyc. 176.
It would serve no useful purpose to review the cases cited by counsel for the respondent holding that distinct acts of negligence may be set forth in a complaint and, also, holding that where knowledge is to be imputed from a condition long existing, then and in that case, and under proper pleadings, evidence of the previous condition of the dangerous instrumentality may be offered in evidence. Thus, in the case of Rocca v. Tuolumne County Elec. Power & Light Co. (Cal.App.) 245 P. 468, proof of the dangerous condition preceding the falling of the wire was admitted for the purpose of imputing knowledge to the defendant and, also, proving the act of negligence on the part of the defendant in erecting its wire underneath an overhanging limb of a tree, which constituted a perilous circumstance of which the defendant was bound to take notice. Also, where the cause of death is questioned, as was true in the case of Robinson v. Western States Gas & Electric Co., 184 Cal. 401, 194 P. 39, and as shown in 10 Cal.Jur. pp. 827, 828, such testimony is admitted to bring home knowledge to a defendant. The cases of Marovich v. Central Cal. T. Co., 191 Cal. 295, 216 P. 595, Connor v. A. & S. F. Railway Co., 189 Cal. 1, 207 P. 378, 26 A. L. R. 1462, and Atkinson v. United Railroads of S. F., 71 Cal.App. 82, 234 P. 863, have to do mainly with the application of the doctrine of res ipsa loquitur, and not questions of pleading confining the negligence to a specific act from which the injury is alleged to have been suffered.
It may be here stated that a review of the cases cited by counsel for respondent discloses that none of them limit the cause of the injury complained of to a particular proximate cause or single act of negligence. Under such circumstances, the rule applicable to the admission of testimony and the relevancy of the testimony is entirely different. Where the dangerous character of the instrument is disputed, and where knowledge of the dangerous condition of the instrument is to be imputed, and the pleadings are so framed as to involve such issues, and no particular act of negligence is specified as the proximate cause of the injury, and there is no admission of negligence on the part of the defendant, then, under such circumstances, the law supports the contention of the respondent, but such is not the case at bar.
We need not follow the somewhat extended argument of appellant in support of its allegation that counsel for respondent was guilty of misconduct to the extent of preventing a fair trial further than to state that the objectionable conduct related to statements during the taking of testimony and in arguments to the jury, detailing and emphasizing the prior alleged acts of negligence of the defendant in the construction and maintenance of its power line, which acts, as we have shown, are irrelevant to the issues which the jury could only properly be called upon to decide, and therefore the cases which we have cited on the admission of testimony are sufficient to show whatever element of prejudice there was in such testimony conveyed to the jury by the argument of counsel. Had the testimony been admissible, the argument of counsel, we think, would have been entirely unobjectionable, but it is easily perceived that a rather vigorous argument of counsel to a jury of ordinary human beings, presenting a picture of alleged previous acts of negligence covering a long period of time, tended strongly to obliterate the line of demarcation between punitive and compensatory damages. Had the premises for the argument been such as warranted counsel’s remarks, there would be nothing objectionable therein, and for this reason we do not think it necessary to incorporate in this opinion the argument of counsel set out in the record, and confine ourselves to the further statement that it was a rather able argument and may be said to be reasonably calculated to induce in the minds of the jurors a conclusion that there should be something added to the award of damages in order to teach the defendant a lesson.
At the conclusion of the taking of testimony, the court, in line with its previous rulings, instructed the jury relative to the previous acts of the defendant, construction and maintenance of its power lines, not involved as the alleged cause of the injury to the plaintiff. These instructions abstractly state the law correctly, but are not embraced within the issues tendered for decision. The instructions, in substance, state that, where one places or maintains a wire charged with a highly dangerous electrical current over a public highway, the law requires that he must see the highest and utmost degree of care in the construction, maintenance, and operation of such wire; that he must use the best materials, adopt the most approved methods of construction to prevent injury, use due care and circumspection to prevent the wires from hanging down and falling to the ground; that the duty is not only to make such wires safe but to keep them safe by vigilance, foresight, and inspection; that a company using wires charged with electricity is bound to know the extent of the danger resulting from them, while the public is not, and is bound to use the highest degree of care practicable to avoid injury; that the operator of an electrical plant is bound to exercise reasonable care in maintaining a system of inspection in order to discover any change in the physical condition of the plant, which would tend to increase the dangers to persons lawfully in pursuit of their business or pleasure; that the care which the law exacts in operating an instrumentality is always in proportion to the degree of injury reasonably to be apprehended from the use of the means employed; and that the master or employer is liable for the wrong or negligence of the servants or employees.
These instructions necessarily conveyed to the jury that it was called upon to decide other issues than that of the extent of the damages suffered by the plaintiff. There is no dissent from the rule that jurors should be instructed only upon the question or questions which the jury is called upon to decide. As said in 24 Cal.Jur. p. 827:
"Accordingly, it is error to give an instruction which, although correct as an abstract statement of a proposition of law, has no bearing upon the issues of the case under consideration, or is unsupported by evidence, though, as in other cases, a reversal is justified only in case a miscarriage of justice results, as where it is probable that the jury was misled. Prejudicial error does not result from an erroneous abstract instruction, which, in view of the undisputed facts, could not possibly have caused injury."
All of these statements of the law, as set forth by the text-writer, would be applicable here, where it not for the fact of the erroneous admission of testimony and the tendering to the jury for decision questions not involved. But, following the admission of the erroneous testimony and the argument of counsel relative to previous acts of alleged negligence and the alleged negligence in the construction and maintenance of the power line, it could not very well be said to have any other effect than to impress upon the minds of the jury a conclusion that something besides compensatory damages should be taken into consideration by the jury. We think that such would be the case, notwithstanding the fact that the trial court subsequently correctly instructed the jury as to the measure of damages. If the effect which we have mentioned may be said to be cured by the subsequent instruction, then the tendency of the instructions, to which we have referred, was to confuse the jury as to the question or issue they were called upon to decide in rendering a general verdict, and to that extent constituted error. Taken alone, we would not hold the giving of the instructions mentioned prejudicial error, but, in connection with the inadmissible testimony upon which the instructions were based, we conclude that the jury must have been more or less influenced thereby.
Upon motion for a new trial the defendant set out in an affidavit the alleged misconduct of counsel for the plaintiff, among other things, as a basis upon which its motion should be granted. This affidavit was upon motion of the plaintiff stricken from the record. The action of the court in granting such motion and denial of the defendant’s application for a new trial are assigned as grounds for reversal, but are not separately considered herein for the reason that it would involve practically a restatement of what we have heretofore stated. The affidavit added nothing to the record.
As one of the reasons urged upon the trial court as to why a new trial should be granted, and one of the grounds strongly urged upon this court as to why the judgment of the trial court should be reversed, appellant sets forth that the damages are excessive. As stated herein, the jury awarded the plaintiff the sum of $25,000. The damages suffered by the plaintiff, as shown by two physicians called on the part of the plaintiff, are as follows:
"Testimony of Dr. Thompson.
"The burn destroyed the exterior area of the skull covering about one-half inch in diameter, which had to be removed; the electric current entered the body from the right hand and his two fingers and thumb were badly burned; the bone on the lower or outer edge of the right hand was burned so it had to be removed; the little finger is somewhat pressed in toward the other fingers; the second finger was destroyed to the knuckle joint and had to be removed to that joint; the first finger was destroyed down almost to the joint; the thumb was removed to the last joint; the wire evidently came in contact with the right hand, passed through the head and where the boy’s body came in contact with the ground; the next injury was a spot on the left shoulder blade about two inches long, where it went through the skin; there was a burn about four inches long on the left side and some of the tissues underneath were destroyed; we took some skin off the leg and covered that over; you can still see the outline of the scar; at the point where the burn occurred I will say that the muscles extending to the arm where the electric current entered the body, the upper part of the arm is about half an inch smaller than the left arm and in the forearm it is about a quarter of an inch smaller than the left arm; the boy was formerly right-handed; the measurements of the boy’s chest disclose that the muscles in the right side seemed to be three or four inches smaller than the muscles on the left side of the chest; the tendency of the muscles on the left side of the chest being drawn toward the spine is to pull the muscles to the left of the vertebræ and cause a curvature of the spine; this curvature is about an inch at the widest place."
In answer to a juror, the distance was given at about half an inch.
"There was also a spot on the left shoulder blade about two inches in length; the boy was a robust boy of between eight and nine years of age when the injuries were inflicted."
In answer to a juror, the doctor stated that he would not say that the curvature of the spine would weaken the boy permanently. This witness then testified that the boy was suffering from chorea and endocarditis as probable results of the injuries described. The witness also testified that cancerous growth frequently follows a scar or a burn; that such results are probable results. It may be here stated that other witnesses had testified that the boy was unconscious for a few hours, that when the doctor called the plaintiff was unconscious and seemed to be suffering great pain; that cancerous growth is not certain to occur in cases of this kind, but that in a certain number of cases cancerous growths do appear from scars or burns; that in this case chorea was the result of the shock; that the chorea might be permanent.
Dr. White, the second doctor called for the plaintiff, testified substantially as Dr. Thompson, but added that his first observation was of a large scar on the left buttocks and then described the other scars and injuries about the same as Dr. Thompson; that the right arm at the biceps was found one-half inch smaller in circumference than the left, and the lower portion of the right arm about one-quarter inch smaller than the left. This witness also testified as to the presence of chorea, endocarditis, and of the possibility of cancerous growth that might occur any time within a period of 50 years.
Two witnesses called by the defendant testified that there was no evidences of endocarditis or of chorea, and that the boy was simply a nervous child; there was also testimony that the boy had resumed his studies in school, and that he had a very fair grip in his right hand.
It thus appears that, while the boy suffered a severe shock and a great deal of pain, that his right hand is disfigured for life, the permanency of the other alleged injurious consequences induced by the shock are more or less problematical. And this is true if we accept only the testimony of the physicians called by the plaintiff. As heretofore pointed out, the circumstances of endocarditis, chorea, and probability or possibility of cancerous growth were not pleaded as injuries or results of injuries suffered by the plaintiff by reason of the negligence of the defendant, but the testimony in relation thereto is referred to herein as bearing upon the question of the award of damages.
As a final résumé of the grounds set forth for reversal upon this appeal, the respondent calls attention to the fact that, even though it be admitted that the errors occurred in the trial as complained of and that the testimony objected to should not have been admitted, unless the defendant has been prejudiced thereby, the judgment should not be reversed. In other words, unless the damages awarded are in excess of what should have been awarded, the defendant has not been injured. This necessitates a consideration of the award. We will here state that we cite no case decided prior to the year 1916 for the reason that beginning at about the year 1916, and perhaps a little earlier, the value of dollars taken as a standard in estimating damages has very materially changed; that is, the value of a dollar prior to 1916, in purchasing power, was so much greater than the purchasing power since the beginning of the year 1916 and up to the present time has been and is so that due allowance must be made therefor.
Since the preparation and filing of briefs by counsel in this cause, volume 46 of the American Law Reports has been published. This volume contains in its annotations of cases an almost complete treatise on the subject of damages in personal injury cases. The annotations referred to include only cases decided between the beginning of the year 1916 and the end of the year 1926. The annotations to which we refer begin on page 1230 of volume 46 A. L. R., and cover over 193 pages. In these pages are collected and cited all the cases, we think, appearing in the official reports decided during said period of time. It would be a work of supererogation on our part to do anything more than to refer to the annotations appended to the case of Quinn v. Chicago, M. & St. P. Ry. Co., beginning on page 1230 of volume 46 A. L. R. A careful study and review of every one of the cases contained in that elaborate annotation discloses no case where damages awarded in a sum such as was awarded in this case have been allowed to stand, where the injuries were no more serious than those suffered by the plaintiff. The cases collected in the note to the annotation to which we have referred show that, in practically every case where the injuries suffered by the plaintiff may be said to be at all comparable, the award of damages has been limited to from $10,000 to $15,000.
In the case of Williams v. Fleming, reported in 46 A. L. R. 1220, just preceding the annotations contained in said volume, we find where a jury had brought in a verdict of $25,000 for injuries to a boy 3 ½ years old, which required amputation of one leg above the knee and other injuries mentioned thereon, the verdict was reduced to $15,000. In the case of Stroup v. N.E. Okl. R. Co., 122 Kan. 587, 253 P. 242, in an action for damages where the plaintiff, 24 years of age, had suffered a fracture and displacement of the vertebræ and other nervous afflictions, a verdict of $30,000 was reduced to $20,000. In the case of Stone v. City of Pleasanton, 115 Kan. 378, 223 P. 312, a case decided in 1924, a boy of 13 years of age came in contact with a live wire, was severely burned, his arm had to be amputated between the elbow and the wrist, scalp wounds on the head which would not cure, large burns on the shoulder and leg, and 216 square inches of skin grafting required. A verdict of $19,000 was reduced to $15,000.
We will not here extend this opinion by referring to the cases cited, but content ourselves with the statement that an examination thereof shows that the award in this case is considerably in excess of that which has been awarded for anything like comparable injuries in other states, and no case has been decided in this state where, for like injuries, so great an award has been permitted. The nearest approach thereto is that of Smith v. San Joaquin Light & Power Corporation, 59 Cal.App. 647, 211 P. 843. In that case, the right arm of the plaintiff had to be amputated just below the elbow and other injuries were suffered by him, which the record does not disclose, but which the court in its opinion stated that it had carefully examined, and that there was nothing in that case which tended to improperly influence the jury and thereby increase the award of damages.
Without touching upon the question of passion or prejudice, we think it is reasonably apparent from what has been said herein that the award of the jury was increased to a considerable extent by the testimony improperly admitted, and that to such extent the defendant may be said to have suffered prejudice. In view of the admission of negligence on the part of the defendant and that the amount of damages to be awarded really constituted the only issue that should have been submitted to the jury, and which issue only it was proper for the jury to determine, the ends of justice in this case do not require an absolute reversal of the judgment. Under section 53, Code of Civil Procedure, an appellate court is empowered to affirm, reverse, or modify any judgment appealed from and may direct the proper judgment to be entered, or direct a new trial or that further proceedings be had. In the case of Simoneau v. Pacific Electric Ry. Co., 166 Cal. 264, 277, 137 P. 20, the Supreme Court, in a personal injury case, upon first hearing ordered a new trial for the reason that improper testimony had been admitted. Upon rehearing this order was revoked, and the judgment was remitted in a definite amount and allowed to stand affirmed as remitted. The court, in its opinion, following this course, said:
"As, however, the only ground upon which the judgment and order denying a new trial was reversed was for the erroneous admission of evidence on the subject of damages, the respondent asks that he be permitted to remit the sum of $3,000, and that upon such remission, the order denying a new trial and a judgment against defendant for seven thousand dollars be affirmed. There can be no question but that this court in a proper case may do this (Code Civ. Proc. § 53; Tarbell v. Central P. Ry. Co., 34 Cal. 616; Kinsey v. Wallace, 36 Cal. 463; Davis v. Southern Pacific Co., 98 Cal. [19] 18 [35 Am. St. Rep. 133, 32 P. 708]), and we think this is a proper case for doing so."
Eliminating the inadmissible testimony to which we have referred, which may have increased the award of damages, and also eliminating the special injuries complained of, which were not properly pleaded and presented for determination, we think there is still remaining sufficient to show that the plaintiff suffered severe injuries and that a comparison of this case with the long list of cases set out in the annotations in 46 A. L. R., supra, to which we have referred, a judgment awarding the plaintiff compensation for the injuries suffered in the sum of $15,000 would subserve the ends of justice, avoid the expense and necessity of a new trial and terminate litigation already somewhat protracted.
It is therefore ordered and adjudged that if the respondent shall, within 30 days after the going down of the remittitur herein, file in the court below a written release to the extent of $10,000, then, and in that case, the judgment in this case stands affirmed in the sum of $15,000, otherwise to stand reversed; it is further ordered that in view of section 1027, Code of Civil Procedure, covering costs in cases where a judgment is modified, that the respective parties in this case pay their own costs upon appeal and that neither recover from the other such costs.
We concur: FINCH, P. J.; SHIELDS, Justice pro tem.