Imlay v. California Cab Co.

TAPPAAN, J.,

pro

tem.

This is an appeal from a judgment awarding plaintiff damages for personal injuries suffered by her while alighting from a taxicab owned and operated by defendant, and driven, at the time of the accident, by an employee of defendant and appellant.

Appellant’s first assignment of error is that both the trial court and plaintiff’s counsel, during the argument to the jury, were guilty of misconduct highly prejudicial to appellant and which prevented him from having a fair trial.

Prom an examination of the record presented upon this appeal it is extremely doubtful whether or not the appellant suffered prejudice by reason of any statements of counsel of which he complains. Even if plaintiff’s counsel had been guilty of misconduct an admonition from the court would have removed the effect thereof in every instance.

In

Scott

v.

Times-Mirror Co.,

181 Cal. 345, 368 [12 A. L. R. 1007, 184 Pac. 672, 682], the court in deciding the question presented here, and under very similar circumstances, said: “In no case was the court requested to instruct the jury that the conduct objected to was improper and that it was to be disregarded by them. Where the action of the trial court is not thus invoked, the alleged misconduct will not be considered on appeal, if an admonition to the jury would remove the effect thereof.” (See, also,

Olsen

v.

Standard Oil Co.,

183 Cal. 20, 26 [204 Pac. 393].)

[70]

Appellant cites the following remark made by the court during the course of plaintiff’s argument: “Now, then, you are out of order. The objection is improper, and I will request you now not to interfere with the argument, with the proceedings, by any objection, unless it is obviously well founded.” Counsel made no objection to this remark other than to state: “I think that I am unjustly criticized for this remark.”