Inouye v. McCall

PULLEN, P. J.

From a judgment entered against appellants for the death of Frank Inouye, the husband and father of plaintiffs, this appeal is prosecuted.

The record discloses, and it is conceded by appellants, that there was substantial evidence to the effect that Relv Taylor, one of the appellants, was operating the truck involved in the accident in a negligent manner at that time and place and that he was then the employee of defendant McCall and was acting within the scope of his employment. It is also conceded that the amount of the award was not excessive.

Two points are urged for a reversal: First, that the trial court committed error in refusing to allow defendants to inspect certain notes and memoranda to which a witness had referred during his direct examination; and, secondly, that the decedent was guilty of contributory negligence.

As to the first point, the record discloses that plaintiffs called to the witness stand Homer F. Raleigh, a state highway patrol officer. On direct examination he was asked as to the time he arrived at the scene of the accident. He answered approximately 2 P. M. Then the following took place: “Q. Did you make a report that day while you were there? A. Yes, I did. Q. And have you that report with you? A. I have. Q. Made it in your own handwriting ? A. It is. Q. Was it made at the time when you examined the intersection and the objects at the intersection ? A. Yes. Q. Then refreshing your memory from your notes and the report, what time was it when you arrived there? A. Two o’clock, 2 P. M.”. The witness then testified at considerable length and some detail as to what he saw at the scene of the accident and located various points upon a map in evidence and gave distances of these points from fixed objects designated on the map. Upon cross-examination, Mr. Neumiller, one of the attorneys for the defendants, said to the witness: “May I see that report and diagram? A. You can see the diagram, but don’t look at the copy. Q. You have been using this re

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port to refresh your recollection today, haven’t you? A. Yes, but this on the back of that report is strictly confidential, through the Vehicle Code, which states that, and that is not for you to read, Mr. Attorney. Mr. Neumiller: If your honor please, I would ask leave to examine this report. The witness: That cannot be read, your honor. Mr. Neumiller: (continuing) from which the witness — The court: Your motion will be denied.”