Zaferis v. Bradley

McCOMB, J.

This is a motion to affirm a judgment in favor of respondents after trial before a jury in an action to recover damages for personal injuries.

The motion is made in accordance with the provisions of rule V, section 3, Rules for the Supreme Court and District Courts of Appeal (213 Cal. xliii), which reads in part as follows :

“At any time after the filing of the opening brief of an appellant in a civil action, the respondent may, upon due notice, move for a dismissal of the appeal or an affirmance of the judgment or order on the ground that the appeal was taken for delay only or that the questions on which the decision of the cause depends are so unsubstantial as not to need further argument. ...”

Viewing the evidence most favorable to appellant, the material, facts are:

June 19, 1936, respondent Bradley was driving an automobile owned by respondent Maryland Casualty Company in a westerly direction on Wilshire Boulevard approaching MeCadden Place in the city of Los Angeles. Just prior to the time of the accident hereinafter described he was approximately 2'5 feet east of the latter street and appellant’s automobile, also traveling west on Wilshire Boulevard, was about 25 feet to the rear of the car being operated by respondent Bradley. Respondent Bradley started to make a turn to the north onto McCadden Place, whereupon appellant jammed his

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foot on the brake of his car and turned sharply to the right. His foot slipped from the brake and caught between the accelerator and brake pedal. The two automobiles then collided, no damage being done to either ear.

Appellant claims that as a result of the accident his knee was injured.

Appellant relies for reversal of the judgment on these propositions:

First: The trial judge committed prejudicial error in instructing the jury as follows:

1) “Ton are instructed that in arriving at your verdict you, are not to consider the financial circumstances of the plaintiff or defendant whether they may be rich or poor. This is a matter of no concern to you and should not be considered in your deliberation. The fact that Maryland Casualty Company, one of the defendants in this case, is an insurance company should in no way influence you in reaching your verdict. Tour verdict in order that it may be a true verdict must be based solely upon the evidence in this case and upon the instructions of the Court and not on passion, prejudice, pity or sympathy.”