Schediwy v. McDermott

California Court of Appeal Apr 4, 1931 No. Docket No. 7575.Published

Before: Ward

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Holding. The court held that the evidence was sufficient to support the jury's finding of negligence by the defendant employee and that the trial court did not err in denying a new trial, as no prejudicial misconduct occurred during the proceedings.

Issues

Whether the evidence was sufficient to establish negligence on the part of the defendants.
Whether the plaintiff was guilty of contributory negligence as a matter of law.
Whether the conduct of plaintiff's counsel during the trial constituted prejudicial misconduct requiring a new trial.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Contributory negligence is a question of law only when an inference may be drawn by reasonable men that there can be no doubt of a plaintiff’s negligence and that such negligence was the proximate cause of the accident.”

“When a question is propounded and an objection is sustained to the form of the question—it is an invitation by the court to reask the question.”

WARD, J.,

pro tem.

This is an appeal from a judgment based upon a verdict o'f a jury awarding to plaintiff damages in the sum of $5,000 against the defendants and to review the proceedings of the trial court in denying defendants’ motion for a new trial.

The undisputed facts are as follows: That Santa Clara Avenue is a public street in the city of Alameda, running in a general easterly and westerly direction; that on the north side of this street there is a sidewalk for the use of pedestrians; that on the same side and about in the middle of the block, between Park and Oak Streets, there is situated a building commonly known as the city market; that J. Frank McDermott, doing business under the name of Lewis & McDermott, was engaged in the wholesale meat business; that Joe Souza, an employee, on the twenty-fourth day of July, 1928, had finished delivering beef to the city market from a truck parked at the north curb of Santa Clara Avenue and was proceeding back to the truck after making such deliveries; that plaintiff Anna Schediwy was walking along this sidewalk at a point about opposite the market; that at the same time Joe Souza left one of the entrances to the market, the doors of which are recessed four or four and one-half feet from the front of the market; that Souza proceeded southerly across this sidewalk toward the curb; that the bodies of appellant Souza and respondent collided about two and a half feet from the building line with the result that Anna Schediwy was knocked down and sustained certain injuries in compensation of which verdict was rendered and the judgment entered.

The points urged for a reversal of the judgment are as follows: That the evidence is insufficient to establish any negligence on the part of the defendant Joe Souza; that the evidence is insufficient to establish any negligence on the part of the defendants J. 'Frank McDermott and/or Lewis & McDermott; that plaintiff Anna Schediwy was guilty of

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contributory negligence; that plaintiff, by her attorney, was guilty of irregularity and misconduct in the proceedings of the trial by which defendants were prevented from having a fair trial; that the court erred in denying defendants’ motion for a new trial.

Schediwy v. McDermott

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WARD, J.,

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