Vinole v. Caso

TUTTLE, J.,

pro tem.

This is an action by George Vínole and Nan Vínole, his wife, to recover damages for personal injuries alleged to have resulted from an automobile collision.

The case was tried before a jury and a verdict rendered, which fixed the damages to the -husband at $1500 and those to the wife at $7,500. This appeal is prosecuted from the judgment entered upon the verdict.

On the evening of July 5, 1929, one of the defendant’s employees parked a truck on N Street in the town of Newman. The street was dark, and the truck was parked at an angle of ninety degrees to the curb, about halfway down the block. It had a large “box-car” body and extended out 18 feet and 10 inches into the street. There was no tail-light burning on the truck, as required by the California Vehicle Act. Plaintiffs were riding in their automo

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bile, and had turned the córner into N Street. The husband was driving and their lights were on. As they drove down N Street, the right side of their car struck the corner of the truck which extended furthest into the highway; resulting in personal injuries to both plaintiffs.

A reversal is sought upon the grounds, first, that the court erred in refusing to grant a nonsuit, and, second, that the court erred in instructing the jury.

The negligence of appellant’s employee in leaving the truck upon the highway at night without lights is conceded by appellant, but it is earnestly contended that contributory negligence upon the part of Mr. Vínole bars a recovery. This contention arises out of the following evidence : Upon his examination in chief plaintiff George Vínole testified that when he was proceeding down N Street he was

looking ahead.

When he was cross-examined he was shown his signed statement, made some time previous to the trial, wherein he stated that he was not looking ahead, and for this reason did not see the truck. This statement was secured by a representative of a casualty company which was evidently interested in the matter. At the outset of the cross-examination, Vínole testified: “I was looking ahead.” By means of an ingenious method of elimination, and upon a recross-examination the following testimony was extracted by appellant: “Q. Well, you don’t state anything about the time—yes you do, you state about 8:45. Outside of that, though, and outside of the distance on the street, down from the corner and the width of the street, the statement you made at that time is true, is it? A. Yes.”