Baroni v. Rosenberg

PRESTON, J.—

The order granting a new trial, here appealed from by defendant B. Rosenberg, is affirmed. The

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sole question is whether the trial court abused its discretion in making said order.

Plaintiff predicated his motion for new trial upon practically all of the statutory grounds (sec. 657, Code Civ. Proc.), but urged as the main specifications of error alleged prejudicial misconduct on the part of counsel for said defendant, hereinafter detailed, and that the verdict was against the weight of the evidence. The insufficiency of the evidence cannot be urged in support of the order, however, as it is not therein specified as one of the grounds therefor (sec. 657, Code Civ. Proc.).

Plaintiff instituted the action for the purpose of recovering damages against defendants by reason of the fact that on November 1, 1926, he was struck by a five-ton dump truck owned by defendant B. Rosenberg and operated by one of his employees in connection with grading work on Rutland Avenue, San Francisco. Plaintiff was at said time acting as grading foreman for Keystone Construction Company and, in a half-kneeling position at the sidewalk edge on said avenue, was engaged in stretching string to mark the prospective line of curb for excavation purposes. The truck, in passing, hit his leg and so swung him around that one of his feet was caught under a wheel, crushed, injured and rendered permanently useless. Continental Casualty Company, the carrier of workmen’s compensation insurance for plaintiff’s employer, which had expended in plaintiff’s behalf some $1,000.20 for hospital expense and claimed $3,520.27 as compensation payments for 169 weeks, joined in the action as plaintiff intervener and lien claimant. The cause was tried before a jury and verdict rendered for said defendant. The alleged misconduct charged by plaintiff arose from a colloquy which took place between counsel in the presence of the jury, under substantially the following circumstances:

Counsel for defendant called plaintiff as a witness under section 2055 of the Code of Civil Procedure and asked him if he was receiving at that time workmen’s compensation each week. Plaintiff’s attorney objected unless the jury be instructed that such compensation would have to be paid back out of any verdict obtained. After remarks between counsel, the record shows the following: “Q. (By Mr. Gallagher, Counsel for Defendant) : It is a fact that you are weekly receiving indemnity from the Continental Casualty