Lynch v. Defino

VALLÉE, J. Appeal by plaintiff from a judgment for defendant entered on a verdict of a jury in an action for damages for personal injuries.

[129]Plaintiff, a motorcycle officer, in pursuit of a suspected traffic violator, in broad daylight, was northbound on his motorcycle on Lankershim Boulevard in Los Angeles. Defendant, southbound in an automobile, was making a left turn "at the intersection of Oxnard Street. Plaintiff’s motorcycle went down in the intersection, and he was injured. Apparently he was attempting to avoid a collision with defendant’s automobile.

The specifications of error are (1) the trial judge erred and deprived plaintiff of a fair trial, and the appearance of a fair trial, by not allowing him to introduce evidence to refute evidence introduced by defendant for the purpose of impeaching plaintiff; (2) the trial judge committed prejudicial error by inaccurately restating evidence to the jury, and by accusing plaintiff’s counsel in the presence of the jury of distorting testimony, which accusation was without foundation in fact or any other justification; (3) the trial judge committed prejudicial error by inaccurately accusing plaintiff’s counsel of delaying the progress of the trial; (4) the court erred in giving an instruction on unavoidable accident.

1. Plaintiff was a witness in his own behalf. On cross-examination, defendant’s counsel sought to impeach him by a statement he had made to Sergeant Cudlip, a police officer, at a hospital the evening of the accident. The statement was in the form of a report called "Sick and Injury Report, ’ ’ signed by plaintiff, and had been on file with the police department from the time it was taken. When plaintiff had completed his case, his counsel asked the court: “May I rest, sir, at this time subject to my right to call Officer Cudlip or make appropriate motions as to the testimony which has already been introduced on behalf of the defendant? The Court: Yes.” When defendant rested on a Thursday, counsel for plaintiff asked the court “for a recess until Monday morning so that I can put on Sergeant Cudlip to know what actually happened in that hospital.” The motion was ‘ denied. However, the cause was continued to the following Monday, at which time counsel for plaintiff did not make any further reference to Sergeant Cudlip, plaintiff testified briefly, and the cause was argued.

Error is assigned in the denial of the motion for a recess from Thursday to Monday so plaintiff could “put on Sergeant Cudlip.”. There was no prejudicial error. The