Burr v. Goss

NOURSE, P. J.

Robert Burr was injured while riding on a motorcycle operated by his brother, Le Roy Burr. Mrs. F. H. Burr, the mother of these two, was the owner of the

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machine, and it was being operated at the time of the accident by Le Roy with the owner’s permission. W. H. Goss, accompanied by his wife, was operating an automobile at the time and the two vehicles came into collision at a street intersection. Robert Burr was thrown from the motorcycle and suffered serious -injuries. The Goss car was turned over and Mrs. Goss suffered injuries. Robert Burr first sued the Goss’s for damages. Mr. and Mrs. Goss filed a cross-complaint against the Burr brothers and against the mother as owner of the motorcycle. Mr. and Mrs. Goss commenced a separate action against the same three Burrs and these actions were consolidated for trial before a jury. A verdict against Mr. and Mrs. Goss in favor of Robert Burr for $15,000 was entered as well as one that Mr. and Mrs. Goss take nothing from the Burrs.

The appeal of Mr. and Mrs. Goss specifies nine separate grounds urged for a reversal, which we will take in order. A detailed statement of the facts is not necessary. The evidence presents the everyday occurrence of two motor vehicles colliding in a street intersection with the witnesses on both sides solemnly swearing to fantastic estimates of speed, light and air conditions and attending circumstances. Counsel for all parties argue on this evidence in all seriousness, but the conflicts do not appear to have any great bearing on the result.

(1) Two grounds of misconduct are raised. The first relates to the efforts of respondent’s counsel to bring in a statement which Le Roy Burr made to a police officer that Goss “was coming as fast as he could come.” We cannot perceive how any sensible jury could have been deceived by such testimony or how it could have had any prejudicial effect on the verdict. The second relates to the act of counsel for respondent during his argument to the jury in writing with crayon over a map which was an exhibit of the scene of the accident. It does not appear that the portions of the map thus obliterated were material or that the jury was in any manner confused by the change.

(2) At the request of the respondent the usual “to look is to see and to listen is to hear” instruction was given. Appellants complain that it was inapplicable here because of the evidence that the light of the motorcycle was not burning until a fraction of a second before the collision. Thus they say the words “object clearly visible” and “in plain sight” assumed facts which were in dispute. Whether the motorcycle was visible was a disputed question of fact, and the instruc