Crockett v. Dowling

THE COURT.

An appeal by the defendant from a judgment entered against him in an action to recover damages for personal, injuries alleged to have been caused by his negligence. The injuries followed a collision in the city of Santa Cruz between two automobiles driven by the respective parties to the action. The defendant denied that the injuries and damage complained of were due to his negligence, and pleaded contributory negligence on the part of plaintiff. The action was tried before a jury, which rendered a verdict for the plaintiff. As grounds for reversal it is contended that the conduct of plaintiff’s counsel in connection with the giving of certain testimony by the plaintiff constituted prejudicial misconduct, and that the court instructed the jury erroneously.

In the course of the direct examination of plaintiff the following occurred: “ (Direct Examination by Mr. Snyder) : Q. Mr. Crockett, following this collision which you testified to yesterday, was there any conversation had between you and Dr. Dowling at the time of the accident or afterwards? In referring to this conversation I will ask you to first specify, as nearly as you can, where it was had, and also whether any persons were present besides yourself and Dr. Dowling? A. Well, he came to the house that evening four days after. Q. That would be February 8, 1927 ? A. Yes, I believe it was about—I think it was about four days—I wouldn’t say positively, but around about that time; and he asked me there in the house—there were Mrs. Crockett and the doctor and myself—he asked me if I put on my brake, and I told him no, and he said he was thinking about running in front of me, and then he thought he might get rammed in the center. Mr. Snyder: I think that is all. The witness (continuing) : And he said further he would write to his company and tell them that it was an unavoidable accident, and he said ‘I have paid out

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thousands of dollars for insurance to be protected. ’ Mr. WyckofE: I assign counsel’s bringing that out as misconduct, and prejudicial error. Mr. Snyder: May it please your Honor, your Honor will notice that I said ‘that is all’ and was waiting for the cross-examination. There is no misconduct there. Mr. WyckofE: I will assign it anyway.”

The record discloses n,o evidence that plaintiff’s counsel suggested or intended to elicit the immaterial portions of plaintiff’s testimony. No request that the same be stricken out was made by the defendant, nor did he request the court then or thereafter to instruct the jury to disregard it. Under similar circumstances it has been held that alleged misconduct was not ground for reversal, if an admonition to the jury would have removed the effect thereof.