Citti v. Bava

SHENK, J.

This is an appeal by the defendant from a judgment on a verdict in favor of the plaintiff in an action for damages for personal injuries resulting from an automobile accident.

On the evening of September 26, 1922, the defendant was driving his six-passenger Haynes automobile from San Jose to San Francisco for the purpose of attending a wrestling match to take place the same evening. With him in the car as his guests were the plaintiff herein, R. Dei, who is the plaintiff in a case decided concurrently herewith, and two other men. The defendant drove his car through Cupertino and arrived at the intersection of the highway with Fremont Avenue at a point about ten miles north of San Jose, at which intersection the defendant’s car collided with a Ford car driven by one Louis Aftergut. The plaintiff and Dei were injured and thereafter brought separate actions based on the alleged negligence of the defendant in the operation of the car at the time of the accident. The evidence was sharply conflicting as to the speed of the defendant’s car at the time. According to the plaintiff’s witnesses the defendant’s car was traveling at a speed of fifty-five or sixty miles per hour. According to the defendant’s witnesses the speed of said car was from fifteen to twenty-five miles per hour. The way in which the car overturned immediately after the impact indicates that the speed of the car was somewhere between the two estimates but not necessarily at an excessive speed under the circumstances shown. Whether the defendant’s car ran into the Ford or the Ford ran into the defendant’s car was also involved in a conflict of the evidence. The plaintiff and Dei were seated in the rear seat of the defendant’s car and they testified that they admonished the defendant to slow down his

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car just before the accident. The defendant and the two other occupants of the car testified that no such admonition was given and that there was no reason for anyone to complain of the way the defendant was then driving his ear. The contributory negligence of the plaintiff was pleaded and was an issue at the trial.

The plaintiff called Louis After gut as one of his witnesses. Plaintiff’s counsel over the repeated and insistent objections of the defendant, interrogated this witness at length concerning a compromise and settlement which had been made with him by the Olds and Stoller Inter-Exchange under an insurance policy, which company plaintiff’s counsel was particular to bring out was not a company in which Aftergut had a policy of insurance. The plaintiff also called as his witness one Curtaz, who, the record shows, was acting on behalf of the insurance carrier, and elicited from him the information that he was the person who negotiated the settlement with Aftergut and that he was identified with the defense in the action.