Graham v. Consolidated Motor Transport Co.

NOURSE, P. J.

Defendants had a verdict in an action for damages for personal injuries. The plaintiff appeals from the judgment on the verdict upon typewritten transcripts..

The action grew out of an accident wherein the plaintiff, a child of seven years, was struck by a truck driven by defendant Loney Rogers while in the employ of his co-defendant. The plaintiff, accompanied by her brother of about ten years of age and another girl of about seven, attempted to cross to the south side of Harmon Street in the city of Berkeley at a point about midway between the street intersections. The little girl ran out from behind an automobile parked along the north curb and, when she had reached a point beyond the center line of Harmon Street, her brother called to her to warn her of the approaching truck. She then apparently became confused and turned to retrace her steps. When the driver of the truck saw her crossing he swerved the truck from the right-hand side of the road and brought the truck to a stop at a point to the left of the center line of the street. The right front wheel of the truck struck the plaintiff on' the heel and threw her to the ground, causing the injuries complained of. The defendants, in addition to their denials of negligence on their part, pleaded unavoidable accident and contributory negligence on the part of plaintiff.

On this appeal the appellant assigns as error the action of the trial court in denying her the privilege of

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calling the defendant Rogers as a witness under section 2055 of the Code of Civil Procedure until she had exhausted her own witnesses; but, as she assented to the procedure, there is nothing involved but the well-settled rule that the order of proof is to be regulated in the sound discretion of the court. (Code Civ. Proc., sec. 2042.)

Error is predicated on the ruling permitting the defendant Rogers to state that the father of plaintiff had told him that he did not blame him (Rogers) for the injuries to the plaintiff. The answer was given on a redirect examination upon the theory that it was part of a conversation brought out on cross-examination. The ruling was error and the answer was mere hearsay elicited by an improperly suggestive and leading question. But the plaintiff, upon examination of her own witness, brought out the same matter; hence the ruling was not prejudicial.