Schuh v. Oil Well Supply Co.

KERRIGAN, J.

This is an appeal by defendant R. H. Herron Company from a judgment in favor of plaintiff in an action to recover damages for personal injuries.

■The plaintiff was injured while operating a lathe in a machine-shop owned by the appellant. While operating the lathe the plaintiff, in order to make it run faster, attempted to shift the belt by which the lathe was turned, and in doing so his left hand and arm were seriously injured. The facts of the case are fully stated by Mr. Justice Shaw in the opinion rendered upon a former appeal of this case

(Schuh

v.

R. H. Herron Co.),

and which is reported in 177 Cal., at page 13, [169 Pac. 682].

There is a difference in the averments of the first and second amended complaints as to how the accident happened, and at the trial plaintiff’s testimony was in accord with those of the later pleading. With reference to these changes

[590]

and the contradictory accounts given by plaintiff of the cause of the accident, the appellant claims that it was denied permission to cross-examine him.

[1]

It is true, as asserted by the appellant, that the rule is established in this state that where a party is a witness, pleadings that have been superseded by amended pleadings are available as admissions, and for use on cross-examination for purposes of impeachment

(Schuh

v.

B. H. Herron Co.,

supra); but here no objection or ruling was made against the exercise of that right, nor was there any misunderstanding as to the law on the subject, for it had been stated on the former appeal in this case.

[2]

The objection which brought about the ruling here complained of was upon the ground that the question was argumentative, and it was sustained upon that ground alone. From the record it appears that immediately before the ruling assigned as error the plaintiff’s attention had been directed to the difference between the allegations of his first and second amended complaints, and between the former and his testimony in support of the latter, and upon being asked to explain this difference he replied that he left the matter of pleading to his attorneys. Upon this reply being made the following proceedings occurred: