Exposita v. United Railroads

LANGDON, P. J.

This is an appeal by the plaintiff from a judgment rendered against her upon a verdict of a jury. The action was one for damages for personal injuries claimed to have been sustained by plaintiff while attempting to alight from one of defendant’s street-cars at Fifteenth and Church Streets, in San Francisco. The complaint alleged • that while the plaintiff was attempting to alight from the defendant’s car, the car started and threw her to the ground, causing serious internal injury.

The appellant argues two questions upon the appeal. The first contention is that the court erred in refusing to permit a nine year old child to testify for plaintiff on the ground that she was too young, without any examination of the proffered witness. The plaintiff testified as to the occurrence of the alleged accident, and her testimony was corroborated by that of Primo Mileti, alleged to have been with her at the time. She also offered the testimony of her nine year old daughter, who, it is asserted by her, was present at the time of the accident and witnessed it. The preliminary questions by the court disclosed the fact that at the time of the accident the child was eight years and four months old; that she was nine years old on the ninth day of August, 1916, and the trial took place about a month later. The trial judge stated that from the appearance of the child he would think that she was between seven and eight years old at the time of the trial, and that she was too young at the time of the alleged accident to be permitted to testify in regard to the occurrence.

[322]

Appellant argues that it was improper to exclude the testimony of the child without an oral examination directed to whether or not she was mentally capable of receiving an impression and truthfully relating it, and that as no such examination was made, the exclusion of the testimony was error.

Section 1880 of the Code of Civil Procedure enumerates the classes of persons who may not testify, and among such are included: “Children under ten years of age, who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly.’’

[1]

The competency of a child under the age of ten years to testify is a matter which is left largely to the discretion of the court.