Noah v. Black & White Cab Co.

DESMOND, J. The plaintiff appeals from a judgment entered in favor of defendant Barnett by the court sitting without a jury. As to all other defendants dismissals had been entered before the trial.

The action was for damages claimed as the result of a collision between two automobiles at the junction of two thoroughfares in the city of Los Angeles. Plaintiff, a passenger in a Black & White taxicab, was being driven in a westerly direction on Wilshire Boulevard, while the defendant Barnett was driving his Hupmobile in an easterly direction. Arriving at the junction of Highland Avenue, Barnett turned to the north, the collision between the two vehicles occurring in the northerly portion of the intersection of the two streets, when the taxicab struck the Hupmobile at or near the right rear fender. The shock of the collision was such as to throw plaintiff with considerable force against the interior of the cab, injuries resulting therefrom.

Plaintiff rests his appeal upon three grounds, stated in his brief as follows: “Point 1. The court erred in refusing to permit the deposition of the defendant and respondent W. A. Barnett to be received in evidence in its original form. Point 2. The court erred in admitting evidence over the objection of plaintiff. Point 3. That said judgment is not supported by the evidence.” We shall consider these contentions in their order.

As to point 1, it appears that prior to the trial of the action attorneys for the plaintiff took the deposition of defendant Barnett, who later signed it but not in the presence of plaintiff’s attorneys and not until he had made certain changes in figures, indicating the distances between various points, and interlined certain language that might be considered as explanatory or in amplification of answers made when under examination. The attorneys for plaintiff were unaware of these changes until the case came to trial, and objected to the court’s considering the deposition with the changes as made (the original replies also appearing), contending that the deposition as originally taken and not changed in any particular should be before the court. Section 2052 of the Code of Civil Procedure provides that “a witness may also be impeached by evidence that he has made at other times statements inconsistent with his present tes[239]timony”. There was no denial by the witness upon his examination in court that he had made statements under his original examination by deposition that differed from those which he made in court and which he entered in his deposition. In fact, he explained to the court why he made the changes. Since the trial judge was definitely advised of the original answers given when the deposition of the witness was taken, and of the conditions under which the changes therein were made, and since he had the opportunity to hear in court, on direct and cross examination, the testimony of Barnett upon these very matters, we fail to see how the rights of plaintiff were in any way prejudiced by this procedure. We therefore hold the first point not well taken.