Kraft v. Nemeth

MOORE, P. J.

This is an appeal from two judgments entered upon verdicts in two actions arising from an automobile accident. They were consolidated for trial.

The accident occurred on the morning of July 16, 1950, on Highway No. 6 just north of the intersection with Angeles Crest Highway which joins it from the east at a “Y” angle. Immediately prior to the collision, the automobile occupied by appellants was travelling north on Highway No. 6. The car occupied by respondents, driven by Mr. Nemeth, was travelling south on the same highway. It was Mr. Nemeth’s intention to made a left turn onto Angeles Crest Highway. The two vehicles collided on the southbound portion of the highway. Skid marks left by appellants’ car started on the

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northbound lane and swerved left into the southbound lane for a distance of 134 feet to the point of impact. The two automobiles were badly damaged and personal injuries were sustained by all the parties.

Appellants concede that the evidence is conflicting and base their appeal solely upon the ground that the trial court “so mishandled procedure of trial, and so misdirected the jury, that appellants were deprived of a fair trial.”

The trial procedure of which appellants complain was the designation of respondents as plaintiffs and the designation of appellants as defendants. Appellants contend this was prejudicial to them because it gave respondents the opportunity to examine the jury first, to make the first opening statement, to produce the first witnesses and permitted them to make both the opening and closing arguments to the jury.

The trial court has wide discretion in the conduct of a trial and unless it can be shown that there was an abuse of discretion, an appellate court will not interfere.

(Ferguson

v.

Dam,

140 Cal.App. 701, 703 [35 P.2d 1072].) Appellants admit that they stipulated to this arrangement, but now contend their stipulation was only with respect to the order of exercising peremptories and selection of the jury. Respondent’s action was the first suit filed. The trial court’s ruling was a proper exercise of its discretion. Appellants make no claim that the two cases were not properly consolidated for trial and have not pointed to any place in the record wherein they objected to the trial procedure. Furthermore, the trial court at appellants’ request gave the following instruction which made it very clear that the designation of appellants as defendants was for convenience only: “A number of the general instructions which I will give you will refer to the terms ‘plaintiff’ and ‘defendant.’ We are here considering an original action (the Nemeth complaint), a cross-complaint (by Mr. Kraft and Mr. Woodhead), and an independent action against Mr. Nemeth (by occupants of the Cadillac automobile).