Rossman v. Hall

HERNDON, J. In this personal injury action growing out of an automobile collision at an intersection, the jury’s verdict was in favor of defendants. Plaintiffs have noticed an appeal from the verdict and judgment and from the order denying their motion for a new trial. No claim is made in the briefs that any error occurred in the admission or rejection of evidence, in the giving or refusal of instructions, or in any other respect, during the trial. Neither is it contended that the evidence is insufficient to support the verdict and the judgment. The sole contention advanced is that the trial court erred in denying plaintiffs’ motion for a new trial on the grounds of surprise and of newly discovered evidence.

Four witnesses testified at the trial: plaintiffs Russell and Betty Rossman, one Rudy Caldron and defendant Hall. Plaintiffs’ theory was that the accident was caused by defendant’s failure to obey the command of a boulevard stop sign before entering the highway upon which they were traveling. The testimony of the Rossmans tended to support this theory as did that of Rudy Caldron. The testimony of the latter witness is summarized as follows in the opening brief: “The plaintiffs called Rudy Caldron, a Mexican boy 13 years of age at the time of trial, who testified that he was drinking a soft drink in a gasoline service station at the northwest corner of the intersection and was looking in the direction of the intersection at the time. He said that [493]he saw a dark Chevrolet, identified as that of Mr. Hall, the defendant, going east on ICatella. That this ear did not make any stops either before entering the intersection or during the time it was within the intersection until after the collision with the northbound car in which the Rossmans, the plaintiffs, were riding.”

It further appears from appellants’ opening brief that 11 [u] pon calling Rudy Caldron to the witness stand, or just before, plaintiffs’ counsel approached the bench and stated that the witness was afraid to testify, but did not inform the Court of any reason why the witness was afraid. Upon the witness being sworn the Court told Rudy to state his name and told him that he was there only for the purpose of telling the truth and for no other reason, and that he should answer truthfully questions put to him by plaintiffs’ counsel and by defendant’s counsel.”

On cross-examination defendant’s counsel showed Rudy a statement which he acknowledged he had signed. This statement set forth a version of the facts substantially different from that to which the witness had testified on direct examination. Although the statement was admitted in evidence over plaintiffs’ objection, it is not now contended that its admission was erroneous. The contention appears to be that the production of the impeaching statement constituted “surprise”.