Wulferdinger v. Pickwick Stages System

THOMPSON (R. L.), J.

This is a motion on the part’ of the appellant for a diminution of the record by requiring the court reporter to certify as a part of the transcript of testimony the deposition of the plaintiff which was duly taken pursuant to law prior to the trial. The appeal was

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perfected pursuant to section 953a of the Code of Civil Procedure.

It is asserted that this deposition is a proper and necessary part of the record, since it was offered in evidence by the appellant under section 2022 of the Code of Civil Procedure, and for impeachment purposes. It was, however, properly rejected by the court. This court may not direct it to be certified as a part of the record on appeal for two reasons. It does not impeach the witness upon the ground claimed by the appellant. It was not marked for identification during the progress of the trial.

The appeal was taken from a judgment for plaintiff for injuries sustained while riding as a passenger in the auto-stage of the defendant. Prior to the trial her deposition was duly taken and returned to the court in the manner provided by statute. The plaintiff was called and examined at the trial as a witness in her own behalf. With respect to the speed of the stage upon which she was riding at the time of the accident in question she testified: “ Q. At what speed was the car going when you passed that bridge (just before the accident) ? A. Well, it was going faster—faster than we were coming from the Springs; I should say perhaps forty-five miles an hour. ’ ’ Upon cross-examination the plaintiff was asked no question regarding the speed of the stage. Subsequently, as a part of the defendant’s case the deposition of the plaintiff was offered in evidence under the provisions of section 2022 of the Code of Civil Procedure. Counsel for the defendant stated that he wished to read it as the testimony of the plaintiff which was taken pursuant to section 2055 of the Code of Civil Procedure. Upon objection this was refused. By permission of the court she was then called by the defendant and further cross-examined under the provisions of the last-mentioned section. Having had an opportunity to fully cross-examine the witness upon this subject matter, the right to further cross-examine her in this manner was discretionary with the court. (Sec. 2050, Code Civ. Proc.) Upon further cross-examination the witness was asked if in the giving of her deposition she did not say, “The bus was going along at a rate of speed of about thirty-five miles an hour until about seven miles before we came to Uldah, where it left the road and went down into a river bed . . . ,” to which inquiry she replied, “If