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Ornales v. Wigger

Court of Appeals of California
Nov 4, 1949
210 P.2d 848 (Cal. Ct. App. 1949)

Opinion

11-4-1949

ORNALES v. WIGGER et al. Civ. 16897.

Marcus, Rabwin & Nash and Robert M. Newell, Los Angeles, for appellant. By Robert M. Newell, Los Angeles. Bauder, Gilbert, Thompson, Kelly & Veatch, Los Angeles, for respondents. By Roger E. Kelly, Los Angeles.


ORNALES
v.
WIGGER et al.

Nov. 4, 1949.
Hearing Granted Dec. 29, 1949.
Subsequent Opinion 218 P.2d 531.

Marcus, Rabwin & Nash and Robert M. Newell, Los Angeles, for appellant. By Robert M. Newell, Los Angeles.

Bauder, Gilbert, Thompson, Kelly & Veatch, Los Angeles, for respondents. By Roger E. Kelly, Los Angeles.

MOORE, Presiding Justice.

While walking westerly across Main street in Los Angeles appellant collided with respondents' automobile which had approached from her right. Her claims having been rejected by the jury, she now demands a reversal of the ensuing judgment on the grounds of insufficient evidence and errors in not giving certain instructions.

Mrs. Wigger testified that while accompanied by her husband she drove carefully southward in the rain along Main street and about the center of the west side thereof. She saw no one in the crosswalk as she approached Workman street. After her car had entered the intersection, a parasol went up at her left window and a woman screamed. She crossed Workman street and stopped when both respondents left their automobile. When she looked back her husband was assisting appellant. The latter kept repeating, "Don't let the police take me; don't let them fight me." She talked "a little irrational * * * her breath was very strong of liquor." She pleaded for some one to find her purse only to discover that she had not brought it. She stated: "It is no more your fault than mine; I had the parasol down in front of me."

From such evidence the jury could have determined that appellant's intoxication and having her parasol down before her were negligence and that they contributed to her injuries. No damage was done to the automobile except a bend in the stem of the rearview mirror which was attached to the front frame of the left door. Mr. Wigger's testimony was in its essentials the same as that of his wife.

Appellant testified that she looked both ways before starting to cross Main street and looked again just before crossing the center of the street. The jury were not obliged to believe that she did either. From a disbelief of her own assertions of having exercised care as well as from the evidence of her contributory negligence the jury could have found her not entitled to recover. Either the refusal to believe appellant or the acceptance of respondents' evidence was sufficient support for the implied finding that appellant was contributorily negligent. Hinkle v. Southern Pacific Company, 12 Cal.2d 691, 695, 87 P.2d 349. The fact that the testimony of appellant was not contradicted did not require the jury to accept it as true. Beadle v. Northrup, 90 Cal.App.2d 510, 203 P.2d 552. The jury is not required "to decide in conformity with the declarations of any number of witnesses, which do not produce conviction in their minds * * * against * * * other evidence satisfying their minds." Code Civ.Proc., sec. 2061. Appellant may have been impeached by her manner of testifying. Code Civ.Proc., sec. 1847. The jury could properly have found her to have been intoxicated and that such intoxication contributed to her injury. Vehicle Code, sec. 565.

Inasmuch as respondents' failure to yield to appellant in the crosswalk, Vehicle Code, sec. 560, is not shown to have resulted from causes beyond their control, Satterlee v. Orange Glenn School Dist., 29 Cal.2d 581, 589, 177 P.2d 279; Mathers v. County of Riverside, 22 Cal.2d 781, 785, 141 P.2d 419, the verdict is supported only by appellant's contributory negligence in excluding her own view of the street as she attempted to traverse it and in colliding with the side of the motor car. Therefore the propriety and correctness of the instruction with reference to negligence arising out of respondents' breach of a statute, Vehicle Code, sec. 560, becomes moot. Since all intendments favor the judgment it must be assumed that the verdict was based upon contributory negligence.

It is true that the court erred in refusing to instruct the jury that the testimony of Mrs. Trujillo should be considered only as impeachment of the witness Barrere. The latter while standing 55 feet away from the scene of the collision heard the impact and assisted in carrying appellant to the Trujillo porch. For the purpose of impeaching him he was asked: "Did you tell Mrs. Trujillo that Mrs. Ornales walked into the side of a car?" Notwithstanding (1) appellant's objection that it called for hearsay and (2) her motion that the jury be instructed to consider the Trujillo answer for the purpose of impeachment only, the court declined so to instruct the jury. The only response was the statement, "I am admitting this for the purpose of impeachment, if it is so." It is the duty of the court upon timely request clearly to instruct the jury to consider such evidence for the limited purpose of impeachment. In re Estate of Relph, 192 Cal. 451, 458, 221 P. 361. Such testimony was hearsay and if it were the only proof of appellant's walking into respondents' car, as Barrere had allegedly told Mrs. Trujillo, it would have been incurably prejudicial. But there was other competent proof from which the jury might reasonably have inferred that appellant caused her own injuries, namely, the testimony of respondents and the bent step supporting the mirror. In view of the pertinence and force of such proof it can hardly be said that the hearsay testimony of Mrs. Trujillo prejudiced appellant's cause. Since the jury could properly have found appellant contributorily negligent without resort to the hearsay evidence, a reversal would not be justified. Constitution, Art. VI, sec. 4 1/2 .

Appellant complains that the jury was "over instructed" regarding contributory negligence. While such criticism is too vague to require discussion, a review of the instructions discloses nothing more than a reasonable attempt to cover all phases of the evidence by appropriate instructions.

Judgment affirmed.

McCOMB, and WILSON, JJ., concur.


Summaries of

Ornales v. Wigger

Court of Appeals of California
Nov 4, 1949
210 P.2d 848 (Cal. Ct. App. 1949)
Case details for

Ornales v. Wigger

Case Details

Full title:ORNALES v. WIGGER et al. Civ. 16897.

Court:Court of Appeals of California

Date published: Nov 4, 1949

Citations

210 P.2d 848 (Cal. Ct. App. 1949)