De Gruchy v. City & County of San Francisco

STURTEVANT, J.

The plaintiff commenced an action to obtain a judgment for damages caused by being thrown to the street when he was attempting to board one of the street-cars being operated by the agents of the defendant. The defendant answered and a trial was had in the lower court by the court sitting with a jury. The jury returned a yerdict in favor of the plaintiff and from a judgment entered thereon the defendant has appealed.

The defendant makes several points which may be reduced to two. The plaintiff erred in introducing certain prejudicial evidence and later in the use he made of it. In his complaint the plaintiff alleged that he suffered serious injuries and that said injuries were caused by the defendant’s street-car. The defendant admitted the plaintiff suffered the injuries but denied that the injuries were caused by the negligence of its street-car. On the trial it was the claim of the plaintiff that while he was in the act of boarding a standing car at Geary and Larkin Streets and before he could get a secure footing thereon, the defendant’s agents started the ear, causing plaintiff to fall, and then dragged him some distance. On the other hand, it was the claim of the defendant that its car had not stopped, but was in motion, and that the plaintiff ran toward it, threw his grip and overcoat on the platform, and then attempted to grab a hold and board the car, but that he failed in the latter effort, fell and injured himself. To support its contentions the defendant produced its conductor, motorman and two disinterested witnesses. As recited above, the accident occurred at Geary and Larkin Streets. The plaintiff’s first witness was Albert Green, a truck driver, who delivers for the Calso Water Company. After the accident happened he was at the French Hospital at Geary and Fifth Avenue, which is approximately two miles from Geary and Larkin. In response to questions propounded to him by plaintiff’s attorney, he testified: “I was at the Geary and Sixth avenue entrance and I saw Mr. De Gruchy there at

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that time. A motorman and conductor were just setting him down on the bottom step of the hospital. Mr. Ryan: Q. What did you see there? Mr. Heidelberg: That is objected to as being incompetent, irrelevant and immaterial. . . . The Court: I will overrule the objection. A. They set him down on the steps and left him. Mr. Heidelberg: . . . I will ask it be stricken out and the jury admonished to disregard all such testimony. Mr. Ryan: Wholly preliminary, your honor. Mr. Heidelberg: I still insist upon my objection and my request to the court. The Court: It is preliminary. I will overrule the objection. Mr. Heidelberg: And deny the request to instruct the jury that they are to disregard this testimony in its entirety ? The Court; Yes, sir.” Each and all of the foregoing objections and motions were proper and each ruling was erroneous. As we proceed it will also appear that each error was highly prejudicial. Other equally objectionable questions were propounded to the same witness and other errors were likewise made in ruling on the objections and motions. Each and all were addressed to the same general subject. When the direct examination was completed the defendant asked no questions and excused the witness.