Boling v. Wood

[382]

VAN DYKE, P. J.

This is an appeal from an order granting defendants’ motion for a new trial in a personal injury action wherein a jury had, by its verdict in favor of plaintiffs, awarded the sum of $3,000 in damages.

Appellants are former tenants of respondents. The apartment which they occupied had a skylight in the ceiling of the living room, directly above which there was a skylight in the roof. The two skylights broke when respondent Earl Wood slipped while repairing the roof. Appellants contended that at the time he was carrying a roll of roofing paper and that when he slipped the roll came through both skylights and struck Winifred Boling a glancing blow on the head, resulting in a neck injury. Bespondents conceded that Earl Wood slipped while near the skylight in such manner that his elbow broke the glass; that the broken glass in turn fell upon and broke the glass in the second skylight, precipitating shattered glass into the living room where Winifred Boling was standing

;

and that she suffered minor cuts from glass. But respondents contended throughout the trial that no roll of roofing paper had fallen. The evidence upon this issue was sharply conflicting, and, as aptly stated by respondents herein, the conflict was of such nature that one side or the other necessarily presented false testimony.

Winifred Boling testified in detail as to the happening of the accident, including the fall of the roofing paper. Warren Boling was not present in the home when the accident happened. He testified that, when he arrived, he found his wife and the two respondents, Earl Wood and John Wood, his son, all gathered at the residence and that there then ensued a conversation among the four, wherein respondents both admitted that the roll, of roofing paper had fallen through the skylights when Earl Wood slipped on the roof. At the trial both respondents denied the roll fell and both denied that they had held the conversation with Mr. and Mrs. Boling in which, according to both Mr. and Mrs. Boling, they admitted the roofing paper did, in fact, fall through the skylights. Thereafter, respondents attacked the credibility of both Mr. and Mrs. Boling in respect of the fall of the roofing paper. This attack was made first during cross-examination of Mrs. Boling. The cross-examination was searching and extensive and must have indicated to the jury that the cross-examining counsel was seeking to establish that upon the issue of the fall of the roofing paper and with respect to the four-party conversation she was fabricating her testimony. The same