Pandolfo v. Jackson

KNIGHT, J.

An automobile owned by the defendant Morris Goldman Manufacturing Company and driven by the defendant Minnie D. Jackson struck Nicholas Pandolfo while he was walking across the street near the intersection of Seventh and Linden Streets in Oakland, and he died the same day as a result of his injuries. On account of his death his heirs brought this action for damages, and the jury before which it was tried rendered a verdict against both defendants above named (a dismissal having been entered as to the defendant Morris Goldman individually), the amount of which was subsequently reduced as to Morris Goldman Manufacturing Company, the owner of the automobile, to conform to the provisions of section

1714%

of the Civil Code. From the judgment as finally entered the defendants have appealed, contending as grounds for reversal that counsel for plaintiff was guilty of misconduct, that the trial court erred in making certain inquiries of the jury after the cause was submitted

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to it and before it rendered a verdict as to the probability of an agreement and how the jury stood numerically, and abused its discretion in denying defendants’ motion for nev[ trial grounded on averments of surprise and newly discovered evidence. We find no merit in any of the points urged.

A number of persons witnessed the accident, and their testimony as to the manner in which it happened was conflicting. One of several witnesses produced by defendants was a man named Gordon, whose testimony plaintiffs sought to impeach by showing that between the date of the accident arid the trial of the action he made certain statements to two persons, named Clark and Nickerson, indicating he had a finjaneial motive in giving testimony favorable to the driver of the automobile. Gordon denied having made such statements, and in rebuttal plaintiffs produced Clark and Nickerson as witnesses to contradict him. The former fully substantiated plaintiffs’ claim that Gordon told him the day after the coroner’s inquest that he, Gordon, “was going to get a gootjl sum of money for testifying in the ease”. He further testified that Gordon’s reputation for truth, honesty and integrity was bad. With respect to Nickerson’s testimony, the Record shows that the statement Gordon made to him was slightly different from the one about which Gordon had been interrogated on cross-examination. In this regard Gordoii was asked in substance if he had not told Nickerson that he was going to buy a second-hand store and was going to get the money for such purpose “from the lady that killed th|e old man a couple of weeks before . . . for helping her out iin the accident”; whereas Nickerson was asked if Gordon had told f o him “that he was going to get enough money out of testifying for a lady that killed a man, to set himself up in business”, and Nickerson replied: “Well, he didn’t say exactly who it was, but he said he was going to get enough money to start up in business”—that Gordon did not say that he was going to get the money “out of this case”. Thereupon the following occurred: “Mr. Nichols [counsel for plaintiffs] : Now, ¡your Honor, those questions I asked of Mr. Gordon based on' conversation with this witness I ask be stricken from the record. There were three or four impeaching questions I asked! yesterday as to conversation had with Nickerson and I ask^ that those be stricken from the record. The Court: Very well. They will be stricken out and the jury will not consider ¡them