HURTEL v. ALBERT COHN (1935)

Plaintiffs brought an action against the defendants to recover damages from them on account of personal injuries sustained by one of the plaintiffs in being struck by a truck that was owned by the defendant corporation (hereinafter called the defendant) and operated by one of its employees. The accident occurred at an intersection of two streets and at a point therein designated as a “pedestrian lane.” From a judgment that was entered on a verdict that was returned by a jury in favor of the defendant, plaintiffs have appealed to this court.

Appellants first complain of certain instructions that were given to the jury at the request of the defendant that related “to the doctrine of contributory negligence per se,” and which arose from the fact that the injured plaintiff had attempted to cross a street at its intersection with another street, after the first, but before the second, signal bell which regulated the traffic on such streets had been rung. From a consideration of the provisions of the city ordinance introduced in evidence and which was applicable to the situation, it appears that both vehicular traffic and pedestrians were inhibited from entering the intersection until after the second bell had been rung. If, in the circumstances, the violation of the ordinance contributed proximately to the happening of the accident, by numerous decisions of appellate tribunals the “doctrine of contributory negligence per se,” to which the complaint of appellants herein relates, was applicable; from which it follows that the instructions were properly given to the jury and that regardless of whether the defendant was negligent, plaintiffs were not entitled to a verdict in their favor. But aside from and independent of that situation, it very clearly appears that the verdict returned by the jury was correct, because by her own admissions, as well as by other evidence, at no time during her attempt to walk across the intersection of the two streets did the injured plaintiff look in the direction from which the truck was approaching her until a time when it was too late for her to escape being struck by the truck.

Appellants also predicate prejudicial error upon the fact that the doctrine of “last clear chance” was not elucidated by any instructions given to the jury at the request of the defendant; but since that doctrine was explained to the jury in instructions that were given at the instance of the plaintiffs, it is obvious that as far as that situation is concerned, appellants have no real cause for complaint. It should also be noted that because of the fact that, in violation of the provisions of section 3 of rule VIII of the Supreme Court and the District Courts of Appeal, neither as to those instructions given by the trial court to the jury at the request of the defendant, which are the subject of attack, nor as to those instructions proposed by the plaintiffs, but refused by the court, have the appellants printed in their brief “all other instructions * * * bearing upon that subject.” Hence, they are not entitled to have considered by this court any of the instructions of which they complain.

Appellants urge the additional point that by a specified ruling made by the trial court they were prevented from introducing certain evidence that would have tended to establish the negligence of the defendant. But conceding (without deciding) that error was made by the trial court in that regard, and that had such assumed error not been committed, the jury might have found that the defendant was guilty of negligence in the premises, again it is apparent that the manifest contributory negligence of the injured plaintiff precluded the possibility of a sound judgment in her favor.

Finally, appellants assert that prejudicial error that affected the substantial rights of plaintiffs was committed by the trial court “in admitting in evidence the deposition of plaintiff.” At the trial of the action the sole objection to the introduction in evidence by the defendant of the deposition of the injured plaintiff was that at that time the said plaintiff was present in court. That the point was without merit is attested by section 2021 of the Code of Civil Procedure; Johnson v. McDuffee, 83 Cal. 30, 23 P. 214, and Newell v. Desmond, 74 Cal. 46, 15 P. 369. It is a well-established rule that on appeal grounds of objection not made at the trial of the action to the introduction of evidence may not be considered.

In view of the foregoing considerations, no other specification of error presented by appellants requires discussion by this court; and since in the record herein no error is apparent that would justify this court in a conclusion that a miscarriage of justice has resulted (section 41/212, art. 6, Const.), it is ordered that the judgment be and it is affirmed.

PER CURIAM.