Burbank v. McIntyre

PULLEN, P. J.

Plaintiff, Willie Burbank, accompanied by his wife, Julia J. Burbank, also a plaintiff herein, was driving an automobile in a northerly direction upon the Golden State highway and when near the town of Berenda, another automobile also proceeding northerly, passed, and in avoiding an oncoming truck the passing car alleged to have been operated by defendant, swerved toward the right and came in such close proximity with the car of plaintiffs that some portion thereof struck the left front hub cap of plaintiffs’ car, causing that car to swing sharply to the left. The passing car did not stop, but sped on. Plaintiffs pursued and were able to get the license number of the fleeing car, whereupon plaintiffs returned and gave the number to a state traffic officer.

It was contended by plaintiffs that the sudden swerving of the car caused plaintiff Julia J. Burbank to be thrown against the side and door of their automobile, as a result

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of which “the ligaments or tendons leading along the back and the right side of her neck were broken loose from their fastenings on her shoulder”, for which injuries plaintiffs were awarded $8,000 by a jury.

Defendant, appellant herein, maintains that the evidence is insufficient to show any ailment suffered by plaintiff Julia J. Burbank was a direct or proximate result of any injuries received in the accident narrated.

Various medical men testified for both plaintiffs and defendant, differing considerably in their opinions. It is not necessary to discuss their testimony, but it is quite clear that after the accident plaintiff Julia J. Burbank suffered severe pain in her neck and shoulder, and that she was unable to control her head movements naturally and was compelled to support her head by artificial or mechanical means in order to ease the pain from which she was suffering. In view of this conflict in the testimony, as well as the direct testimony of Dr. Dearborn as to the nature and extent of the injury to the muscles of the neck, .we cannot say that the jury were not justified in finding that the injuries received by plaintiff were the result of the accident, and were permanent in character.

The second point urged by defendant for reversal is that the trial court erred in permitting plaintiffs to. show the arrest of the defendant on a charge of reckless driving and the various subsequent court proceedings taken. In his opening statement counsel for plaintiffs stated to the jury that Mr. Burbank obtained the license number of the ear that struck them “and Mr. Burbank went to the Justice of the Peace in the Second Township in the County of Madera, State of California, which is the township in which the accident occurred, and procured a John Doe warrant ... ”, to which counsel for defendant objected and asked for a mistrial. The court replied, “Well, the jury will be instructed to disregard the statement of counsel and remember it is not evidence in the case. ’ ’ Whereupon counsel for plaintiffs said, “Is the court going to hold at this time that we are not allowed to introduce the record of the conviction of Mr.—” (Mr. Hays interrupting) : “We ask again your Honor, that a mistrial be declared. ’ ’ The court: “Well, the court will deny the motion with the instruction to the jury that they are to disregard the statement of