Buckley v. Wiseman
Decision Date | 30 November 1961 |
Citation | 197 Cal.App.2d 568,17 Cal.Rptr. 360 |
Parties | Thomas BUCKLEY, a Minor, by Donald A. Buckley, his guardian ad litem, Plaintiff and Appellant, v. Norman H. WISEMAN, Defendant and Respondent. Civ. 47. |
Court | California Court of Appeals Court of Appeals |
T. N. Petersen, Merced, for appellant.
Hansen, McCormick, Barstow & Sheppard, R. A. McCormick, Fresno, William B. Boone, San Bruno, for respondent.
This is an appeal from a judgment for the defendant and from an order denying plaintiff's motion for a new trial.
Plaintiff, a minor 16 months of age, was run over by a car operated by defendant at the Castle Air Force Base in Merced County.
On December 13, 1958, defendant and a Sgt. Wiggs were taking a can filled with trash to a 'dumpster.' The trash can was on the back of defendant's station wagon. Sgt. Wiggs drove a car to the scene of the accident, parking ahead of defendant on the other side of the street; he walked over to defendant's car, assisted defendant in emptying the trash into the dumpster and placing the can on the end of defendant's station wagon; then walked back to his car and drove off. During this time defendant was at the rear of his vehicle. He got back in the station wagon and testified that before he had moved one foot he felt a bump, then rolled ahead and felt a second bump, stopped, got out of the car and discovered that he had hit a child. There was testimony that there were no children in the immediate area. Apparently no one saw the plaintiff, as the plaintiff's father and mother were visiting with the Nickens family who lived in the area when the accident occurred. Mr. Buckley, the father of plaintiff, went into this house for a glass of water when, about three to five minutes later, a neighbor came in to state that the plaintiff had been run over by a car. The plaintiff sustained a fracture of the left leg and fracture of the collarbone as a result of this accident.
On this evidence, the jury returned a unanimous verdict for the defendant.
Plaintiff appeals from the judgment and from the order denying his motion for a new trial. Since an order denying a new trial in a civil action is not appealable, plaintiff's attempted appeal from that order must be dismissed. (Code Civ.Proc. § 963; Pipoly v. Benson, 20 Cal.2d 366, 368, 125 P.2d 482.)
Plaintiff was apparently injured in a subsequent accident on November 6, 1959, in which the right leg was broken. There are no details as to how this accident occurred.
As far as the issues are contained in this matter, there is no issue as to contributory negligence by the plaintiff or the imputed negligence of the parents of the plaintiff, nor is there any issue of the condition of the premises or notice thereof. The only issue before the court appears to be whether or not there was error in allowing hereinafter quoted testimony of Mr. McCormick's cross-examination of Dr. Hicks, plaintiff's witness, as to a subsequent accident.
This line of questioning was objected to by counsel for the plaintiff and was overruled by the court.
The jury was also instructed that there was no issue of contributory negligence involved.
X-rays produced by plaintiff's counsel admitted in evidence and shown to the jury included X-rays of fractures of both legs.
The defendant claims that the evidence of the subsequent accident, the breaking of the right leg, was relevant in connection with a claim for permanent injury or disability, particularly as to whether or not the left leg would be permanently shortened. It was also necessary to compare the left leg with the right leg, which defendant's doctor, Dr. Prigge, stated was impossible to do while the right leg was still in a cast. Apparently there was no objection to Dr. Prigge's testimony.
Plaintiff's brief makes a great deal out of the injection into evidence of a subsequent injury to the plaintiff. He cites the general rule that the evidence of a driver's previous accident is inadmissible since such evidence would be immaterial in determining the driver's negligence on the occasion in question. He cites Lowenthal v. Mortimer, 125 Cal.App.2d 636, 270 P.2d 942. In this case the court said at page 640, 270 P.2d at page 945:
Plaintiff also quotes from Perrotti v. Sampson, 163 Cal.App.2d 280, 286, 329 P.2d 310, 314, as follows:
Plaintiff also cites that there are exceptions to the general rule to show contributory negligence, and quotes from McGraw v. Friend and Terry Lumber Co., 120 Cal. 574, 577, 52 P. 1004, 1005, where the court said:
The real problem before us is whether or not there was error in the admission of evidence with regard to the second accident involving the plaintiff. The jury was instructed as follows:
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