Dean v. Feld

California Court of Appeal Dec 19, 1946 No. Civ. 15360Published

Before: Doran

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Holding. The court held that the trial court's inclusion of a superfluous jury instruction regarding right of way was not prejudicial, and that the admission of a witness's descriptive testimony and the asking of an immaterial question did not constitute reversible error.

Issues

Whether the trial court's inclusion of a jury instruction on right of way was prejudicial error.
Whether the trial court erred in permitting a witness to testify that a car was 'pretty close' to the victim.
Whether a question regarding the mother's supervision of the child constituted prejudicial misconduct.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Although the instruction complained of was superfluous, in the light of the record, it cannot be held to have been prejudicial.”

“The expression “pretty close” was merely descriptive.”

“There being no errors in the record, the judgment is affirmed.”

DORAN, J.

This is an appeal by plaintiff from a judgment for defendant in a damage action for personal injuries.

Susan Dean, a four-year-old child, was struck by an auto-' mobile operated by defendant. The accident occurred in a residential district between six-thirty and seven p. m. on April 4th; the weather was clear. The testimony was conflicting as to the rate of speed the car was travelling; defendant testified to 15 or 18 miles per hour. There were cars parked along the curb. Defendant testified, on examination under section 2055, as follows:

“Q. Now, when was the first time that you knew that there was an accident?

“A. When I stopped my car.

“Q. When you stopped. When you put your brakes on—

“A. When I put my brakes on.

[329]

‘ ‘ Q.-was the first time you knew that there was ?

“A. That is right.

‘'Q. What caused you to put your brakes on ?

“A. Well, I heard a little girl scream and I thought I seen something in front of my car, and I stopped the car.

“Q. You heard a little girl scream and you thought you saw something-

“A.-in front of my ear, and I stopped the car.

“Q. Now, by that statement-- I don’t quite understand

you. You thought-

“A. It happened so fast that I didn’t realize that I struck something.

“Q. You thought you saw something in front of your car?

“A. That is right.

‘ ‘ Q. What did you think you saw ?

“A. Well, I didn’t realize at that time. I thought it was something moving in front of the car.

Dean v. Feld

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DORAN, J.

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