Shannon v. Mt. Eden Nursery Co.

Action for personal injuries and damage to an automobile, arising out of a collision at a street intersection. Trial was had before a jury, which resulted in a verdict in favor of the defendants. Motion for a new trial was made and denied. From the judgment and order plaintiff has appealed.

It may be said at the outset that in our opinion the evidence going in support of the verdict is not weak. The record shows a substantial conflict on material matters incumbent on the plaintiff to prove, and there was also' substantial evidence adduced by the defendants which, if believed by the jury, prevented plaintiff’s recovery. Appellant’s contention that the evidence is weak is based upon the fact that a greater number of witnesses testified in support of his allegations. The settled and generally understood rule stated in the Code of Civil Procedure, section 2061, subdivision 5, which directs that when the evidence in a civil ease is contradictory the decision must be made upon its preponderance, contemplates that the jury will be controlled by the weight of the evidence, as indicated by the apparent credibility of the witnesses, rather than by their mere numerical preponderance. Witnesses are not counted, but rather their testimony is weighed. By section 2061, subdivision 2, juries are instructed that they are not bound to decide in conformity with the declarations of any number of witnesses, which do not produce conviction in their minds, against a less number. (10 Cal. Jur., p. 1141, sec. 361.) As there was a substantial conflict, the verdict of the jury is conclusive upon the issue of the sufficiency of the evidence.

With reference to the question of negligence, two factors were involved: the speed of each vehicle as it entered the intersection, and which vehicle entered the intersection first. The evidence upon these questions was as follows: Plaintiff was riding in his own car, which was being driven by his

The plaintiff called five witnesses, who testified that they had observed the collision. Of these witnesses one was the plaintiff himself, and another "his son. The others were a police officer who testified he was standing near the curb, and two persons who were occupants of other moving vehicles. There was a definite conflict between the various witnesses as to the speed of the two automobiles upon entering the intersection, and upon the question • as to which entered the intersection first. Defendant Yoshio testified that he entered first at a certain speed. The witnesses for plaintiff testified to the opposite effect, but upon cross-examination the testimony of plaintiff’s witness, the police officer, showed that Yoshio had the right of way. As we have hereinabove stated, the evidence upon the question of

The alleged misconduct of counsel for defendant Haiden company arose as follows: Plaintiff was a police officer, and upon his cross-examination by counsel for defendant Yoshio he was ashed whether or not he had received full pay for lost time due to the accident. The question was objected to as not being cross-examination, and for the further reason that no relief was prayed for in this connection. The objection was sustained, whereupon counsel for plaintiff made a statement to the effect that he did not want to conceal anything; that the city of Oakland had a pension fund out of which it paid officers during the time they might be disabled; that during the time plaintiff was away from work due to the accident he had received what would have been his regular pay if he had been at work. Counsel for plaintiff then agreed to stipulate that this statement was correct. Opposing counsel then stated that he would assume such fact to be correct. In his argument to the jury, counsel for defendant Haiden company stated in effect that plaintiff was not damaged, as he had passed the age limit and was subject to a pension, and could quit his position as a police officer without any loss. Plaintiff objected to the statement, assigned the same as misconduct, and asked that the jury be admonished to disregard it. The trial judge was of the opinion that the statement of plaintiff’s counsel concerning the matter, made during the course of the trial as above indicated, justified the argument, but he nevertheless admonished the jury to disregard the statement, and in his instructions to the jury at the close of the case he again instructed it to distinguish between the facts testified to by the witnesses and the statements made by the attorneys in their arguments, as to what facts had been proved. The jury was further instructed that if there was a variance between the two, in arriving at its verdict it could consider only the facts as testified to by the witnesses, or admitted facts, and that statements of counsel in their argument were not evidence in the case and should be given no weight whatsoever. Even conceding the remarks to have been error, it is manifest that the error was thoroiighly cured by the instructions given during the course of the trial and at the conclusion of the evidence.

The judgment is affirmed.