McBride v. Southern California Telephone Co.

CRAIG, J.

The verdict of a jury and resultant judgment having been rendered in favor of the plaintiff in an action for damages alleged to have been sustained through negligence of the defendant, the latter appealed.

From the evidence elicited from certain of its witnesses the appellant argues that the verdict is wholly without support as to the manner in which two automobiles of the parties collided upon a public thoroughfare in the city of Los Angeles. It is conceded that a Buick car of the respondent was being driven along a boulevard as a Ford truck of the appellant emerged from a narrow driveway and that they met upon the main highway. Arguments are' devoted largely to positions of the machines after the impact and to conjecture with respect to the possible proximate cause of the injury thereto. An eye-witness swore positively that the Ford proceeded at a rate of twenty miles per hour for a distance of thirty feet and without lessening speed entered the boulevard, turned toward the left and came suddenly in front of the Buick. The plaintiff testified that “it just shot out of the alley and I wasn’t very far from the alley and it shot out at an angle and I had no opportunity of seeing it before”. From this and corroborative evidence before them the jury may well have concluded that although there was other evidence tending to show care on the part of the driver of the Ford car, all of the evidence preponderated against the degree of ordinary care and skill required by law as given in the instructions of the court. The intendments must be resolved in favor of such conclusion.

During cross-examination of one of the plaintiff’s witnesses he was shown and defendant’s counsel offered in evidence a memorandum of a conversation at the latter’s offices about a year after the accident, wherein the witness had stated his opinion as to the occurrence. It is insisted that the trial court erred in excluding the same. However, it consisted of no more than an opinion, was an unsworn response to certain questions, and the witness swore positively, “I was all wrong, and since I have made that statement I went over the whole thing thoroughly and saw where I had been wrong.” Nevertheless, the witness was cross-

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