The petition for a rehearing in this case, as far as it is based on alleged error committed in the department decision, is denied.
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 three thousand dollars, 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., sec. 53; Tarbell v. Central Pac.Ry. Co., 34 Cal. 616; Kinsey v. Wallace, 36 Cal. 463; Davis v.Southern Pacific Co., 98 Cal. 18, [35 Am. St. Rep. 133, 32 P. 708], and we think this is a proper case for doing so.
This is the second appeal in this case from a judgment in favor of the plaintiff. On the first trial the jury awarded plaintiff a verdict for seven thousand dollars damages. On the appeal thereupon taken there was no claim that the verdict was excessive, the only point urged against it so far as the amount was concerned being that evidence of the permanently crippled condition of two of the children of deceased was inadmissible. *Page 278 We held that such evidence was proper. The judgment, however, was reversed solely because of the erroneous admission in evidence of a general speed ordinance of the city of Los Angeles which it was held did not apply to the defendant. (Simoneau v. PacificElectric Co., 159 Cal. 494, [115 P. 320].)
On the second trial out of which this appeal arises, there was no practical difference in the evidence produced in the two cases as far as the points presented on appeal in either case disclose, save as to the evidence on the question of damages. While the general speed ordinance was held inadmissible on the former appeal, still on the second trial the franchise ordinance which embraced a similar limitation was admissible, so that the only difference in the evidence was on the subject of damages, the testimony as to the sickness of the children and the widow intermediate the death of Campbell and the second trial being improperly put before the jury as was pointed out in the opinion in the present appeal. On the second trial with this improper evidence before the jury it returned a verdict for ten thousand dollars in favor of the plaintiff. It must be presumed that the jury on the first trial with entirely legitimate evidence before it made a fair and conscientious award when it fixed the damages at seven thousand dollars. With that as a basis for consideration it is quite reasonable, and no doubt the fact, that the difference between the amount awarded on the first trial and the verdict of the jury on the second trial was the result of the objectionable and inadmissible evidence, and that this prejudiced appellant to the extent of the difference between these verdicts — namely, three thousand dollars.
This case has been in the courts for nearly seven years. A jury has on both trials determined that the plaintiff is entitled to recover. In the present appeal we have decided all questions raised in the case by appellant adversely to it save solely this one as to the evidence on the subject of damages. When we take into consideration the verdict of the jury for seven thousand dollars returned on the first trial under competent evidence and which verdict was not challenged on appeal as being at all excessive, we have a proper standard for all practical purposes under which may be determined the extent to which the defendant was prejudiced by the introduction *Page 279 of this incompetent evidence, and this was to the extent of three thousand dollars. This is what is claimed by appellant as the result of the admission of such testimony. That this is true being fairly apparent, there is no reason why if the respondent is willing to remit that amount he should not be permitted to do so.
In conformity with this view, the judgment heretofore given on this appeal is modified to this extent, that if the respondent shall within thirty days after this date release the verdict and judgment in his favor to the extent of three thousand dollars, the order denying a new trial to appellant shall stand affirmed. If such consent be not filed within such time, the judgment and order denying a new trial shall be reversed.
The appellant to recover its costs.