Hurtado v. San Diego Electric Railway Co.

RICHARDS, J.

This action was instituted by the plaintiff to recover damages from the two corporations, defendants, for personal injuries sustained by him on August 13, 1924, as a result of a collision between a truck of the defendant San Diego Consolidated Gas & Electric Company, of which corporation plaintiff was an employee, and upon which truck he was riding, and a street-car operated by and on behalf of the San Diego Electric Railway Company upon and along certain streets in the city of San Diego. The trial of the action before a jury resulted in a verdict in favor of the plaintiff and against both defendants in the sum of $3,000, for which sum judgment was rendered and entered by the trial court. The defendants had appeared separately and the contest before the trial court took the form of a three-cornered contest, wherein the

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plaintiff sought a verdict against each of the defendants, and wherein the defendants were in some aspects of the trial united in an endeavor to defeat the plaintiff’s claim, and in other aspects of the trial were divided, each attempting to fix responsibility upon the other for the accident, or, in so far as the Railway Company was concerned, in an effort on its part to show that if it was to be held responsible, its co-defendant was also jointly liable. The defendants separately made motions for a new trial, each of which was denied, and they have both perfected appeals, which by stipulation of all parties are presented in a single transcript on appeal.

The first point upon appeal to be considered is that upon which the appellants agree in their assignments of error. One of the issues presented in the trial court was that of the seriousness of the plaintiff's injuries. The plaintiff having introduced his evidence touching that subject and having rested, the defendant Gas & Electric Company placed upon the witness-stand a witness named Ditommaso to testify with reference to the happening of the accident, in which he was also injured and taken to the same hospital to which the plaintiff, while unconscious from his injuries, had been carried. Upon cross-examination of this witness by plaintiff’s counsel with relation to matters occurring at the hospital the witness was asked whether upon the morning following the accident the plaintiff was conscious or unconscious. Various objections were made to this question by both defendants, upon the ground that it was not proper cross-examination or proper rebuttal, and considerable argument ensued, at the conclusion of which the court allowed the question, and in so doing made the remark that while perhaps not proper rebuttal “it is probably an important matter, and I think it is within the discretion of the court to permit the testimony to be received.’" To the remark of the trial court that “it is probably an important matter,’’ the defendants took exception and have assigned the remark of the court as misconduct and as prejudicial error. The objection to the offered evidence upon the ground that it was not proper cross-examination or proper rebuttal may possibly have been a good objection, but the defendants do not urge in relation to the episode that objection, confining their as