Fowler v. Callis

KAUFMAN, P. J.

The plaintiff, Margaret Fowler, appeals from a judgment entered on a jury verdict in favor of the defendants in an action for personal injuries. She urges the following errors on appeal: (1) the verdict is not supported by the evidence; (2) the trial court abused its discretion in sustaining the defendant’s objection to the introduction of certain evidence; (3) the trial court erroneously instructed the jury; (4) defense counsel’s reference to an insurance company constituted prejudicial error.

On the morning of April 26, 1955, at about 10 :55 a. m., the plaintiff, a 37-year-old

woman,

was a pedestrian waiting for a bus near the intersection of 24th and Harrison Streets in Oakland. The garage of the defendants, Dempsey and Saunders, is located at that intersection. The plaintiff was standing on the south sidewalk of 24th Street, leaning against the bus stop sign, which was located in front of the defendant’s garage, about 100 feet from the intersection.

On the morning of April 26, the defendant, Max Wriggles-worth, an employee of Dempsey and Saunders, had begun to install seat covers in a 1950 Chrysler automobile owned by the defendant, George H. Callis, an employee of the Stafford Ink Company. Callis died before the trial and the case against him and that against the ink company were dismissed. Wrigglesworth drove the Callis vehicle around the block from the service garage on Harrison Street, to 24th Street, and parked it facing west, partially on the sidewalk and partially on the street, with the front of the ear beyond the garage doors, and about 25 feet from the bus stop sign. He engaged the emergency brake, left the keys in the ignition, and left the vehicle in gear, but did not inform Callis, who was around, of these facts. While Wrigglesworth was working on the front seat covers, Callis arranged samples in the car and brushed the cushions.

After finishing the front seat, Wrigglesworth went inside the garage to work on the rear cushions. Callis then got into his automobile apparently to turn on the heater. According to several eyewitnesses, the automobile veered backward

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in a straight line at considerable speed and struck the metal bus stop sign. The plaintiff was knocked down by the metal pole of the sign which fell on her, and pinned her under the car. The car left skid marks as follows: right rear wheel 20 feet; left rear wheel 12 feet, leading eastward. After the accident, the automobile, which had a standard shift, was in reverse gear. Plaintiff sustained serious and critical injuries, including a skull fracture and other permanent brain injury.