STELLA VARCOE, Respondent, v. CUYLER LEE Et Al., Appellants

California Supreme Court

S. F. No. 7980.

May 8, 1919

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ANGELLOTTI, C. J.,

Olney, Angellotti

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. Daniel C. Deasy, Judge. Affirmed. The facts are stated in the opinion of the court.

Opinion 2 (ANGELLOTTI, C. J.,)

[1] Negligence—Death of 'Child—Automobile Collision—Speed of Machine—Ability to.Stop—Evidence.—In an action by a father to recover damages suffered through the death of his child, resulting from her being run over by an automobile while she was endeavoring to cross a city street, evidence that the machine was brought to a stop within t'en feet after it struck the child, and that a machine of the weight of that involved could not be brought to a stop in ten feet if it were proceeding more than ten miles per hour, does not justify the setting aside of the verdict for the plaintiff, on the ground that it demonstrates that the automobile was not traveling at a negligent rate of speed, since the jury may have disbelieved that the car came to a stop in ten feet, or that it could not .be stopped witMn that distance if traveling more than ten miles per hour, or it may- have disbelieved both propositions.

[2] Id.—Running of Child Across Street—Contributory Negligence—Question of Fact.—In such .action, the fact that the child after waiting for some wagons and a street'-ear to pass, started to run across the street instead of walking, does not justify the taking from the jury the question as to whether her conduct amounted to contributory negligence, particularly in view of her youth.

[3] Id.—Excessive Damages — Power of Appellate Court.—The power of the appellate court over excessive damages exists only when the facts are such that the excess appears as a matter of law, or is such as to suggest at first blush, passion, prejudice, or corruption on the part of the jury.

[4] Appeal—Judicial Notice.—An appellate court can properly take judicial notice of any matter of which the court of original jurisdiction may properly take notice.

[5] Id.—Actual Knowledge of Judge—Necessity of Proof.—Actual knowledge by a trial judge of a fact, and that the fact is indisputable, does not justify him in taking judicial notice thereof, unless the fact is also a matter of common knowledge.

[6] lb.—“Judicial Notice” Defined.—Judicial notice is a judicial short-cut, a doing away with the formal necessity for evidence bécause there is no real necessity for it.

[7] Id.—Matters of General Knowledge—Judicial Notice—Used With Caution.—The power of judicial notice is, as to matters claimed to be matters of general knowledge, one to be used with caution, and if there is any doubt whatever either as to the fact itself or as to its being a matter of common knowledge evidence should be required.

[8] Id.—Fact of General Knowledge and Notoriety—Nonproduction of Evidence—Tests.—The tests in any particular case where it is sought to avoid or excuse the production of evidence because the fact to be proven is one of general knowledge and notoriety are, first, is the fact one of common, every-day knowledge in that jurisdiction, which everyone of average intelligence and knowledge of things about him can be presumed to know, and, second, is it certain and indisputable.

[9] Id.—Matter of Judicial Cognizance — Proof — Procedure not Improper.—There is no error or impropriety in requiring evidence, even if the matter be one of judicial knowledge.

[10] Id.—Judicial Notice — Business Portion of Street — Instruction.-—In an action tried in the city and county of San Francisco for damages for the death of a child from being run over by an automobile driven at a negligent rate of speed on that portion of Mission -Street between Twentieth and Twenty-second Street's, the court is entitled to take judicial notice that that portion of Mission -Street is a business district, it being a matter of every-day common information and experience to the residents of such city and county, and there is no error in instructing the jury that the location of such accident is in a business district.

Redding, Boalt Pier, John T. Ryan, Joseph D. Redding and Fletcher G. Flaherty for Appellants. Marcel E. Cerf, C.H. Sooy, H.W. Glensor and William F. Herron for Respondent. U.S. Webb, Attorney-General, Albert Lee Stephens, City Attorney, Los Angeles, Wm. P. Mealey, Deputy City Attorney, Los Angeles, George Lull, City Attorney, San Francisco, Maurice T. Dooling, Jr., Assistant City Attorney, San Francisco, John W. Stetson, David R. Faries and Ivan Kelso, Amici Curiae.