Opinion
Hearing Granted by Supreme Court Dec. 16, 1935.
Appeal from Superior Court, Los Angeles County; Warren V. Tryon, Judge.
Action by Mitsuo Umemoto against Archie Burns McDonald and another. From a judgment for plaintiff, the named defendant appeals.
Reversed. COUNSEL
Lasher B. Gallagher, of Los Angeles, for appellant.
J. Marion Wright, of Los Angeles, for respondent.
OPINION
McCOMB, Justice pro tem.
This is an appeal from a judgment for the respondent after trial by a jury in an action brought to recover damages for the wrongful death of respondent’s minor daughter. Appellant was the driver of a truck which caused personal injuries to deceased, as a result of which she died.
Viewing the evidence most favorably to respondent (Ah Gett v. Carr, 3 Cal.App. 47, 48, 84 P. 458), the facts in the instant case are:
Respondent’s daughter, age 17, stepped into the crosswalk at the intersection of Lexington and Valley boulevard in the city of El Monte, Cal. At this intersection Valley boulevard runs in an east and west direction. Lexington avenue intersects with it on the south side. On the day of the accident there was a designated pedestrian crosswalk 12 feet in width extending from the south curb line to the north curb line of Valley boulevard.
Appellant was driving a ten-ton truck and trailer, traveling at a speed of from 10 to 12 miles per hour, in a westerly direction on Valley boulevard, 90 to 100 feet east of the crosswalk at the moment the deceased left the curb. His view of the crosswalk was unobstructed, and he first saw deceased when she was approximately one-third of the way across the boulevard and in the crosswalk. Deceased proceeded in a northerly direction toward the north side of Valley boulevard. According to the testimony of Taduko Midukami, she being the only witness so stating, the left front of appellant’s truck struck deceased while she was in the north half of Valley boulevard. She also testified that decedent had shortly before left the crosswalk, running in a northwesterly direction .
Defendant relies for reversal of the judgment on two propositions:
First. That the deceased was guilty of contributory negligence as a matter of law .
Second. It was prejudicial error for the trial court to sustain an objection to an impeaching question asked the witness Taduko Midukami, on the ground that the question as framed did not include a pure conclusion of the witness, which accompanied the prior alleged inconsistent statement of fact .
As to appellant’s first contention, we have examined the record and are of the opinion there was sufficient evidence considered in connection with such inferences as the jury may have reasonably drawn therefrom to sustain the findings of fact upon which the verdict in favor of respondent was necessarily predicated. We therefore refrain from further discussion of the evidence. Leavens v. Pinkham & McKevitt, 164 Cal. 242, 245, 128 P. 399; Koeberle v. Hotchkiss (Cal.App.) 48 P.2d 104.
Appellant’s second proposition predicates prejudicial error on the trial court’s ruling in sustaining an objection to an alleged impeaching question asked the witness Taduko Midukami. It is solely from this witness’ testimony that respondent claims the jury could properly have found that the decedent was in the crosswalk and in the north half of Valley boulevard at the time she was struck by defendant’s truck .
At the coroner’s inquest this same witness testified relative to the position of the deceased just prior to the accident in part as follows:
"Q. How far out in the street was she when you first saw her?
A. Almost across.
"Q. Was she out of the pedestrian lane at the time?
A. I don’t know. I couldn’t see, but I think she was; maybe she was trying to get away ."
The impeaching question included all of the alleged contradictory statements of the witness as quoted above given at the coroner’s inquest, but omitted the portion of the witness’ answer which is italicized supra, to wit, "maybe she was trying to get away." The trial court based its ruling in sustaining the objection on the ground that the question as framed did not include the entire prior statement of the witness. The impeaching question need show only such part of the former testimony of the witness as is inconsistent with the present testimony. Moore v. Re, 131 Cal.App. 557, 560, 22 P.2d 45; 70 Cor. Jur. 1135. The portion of testimony omitted was a pure conclusion of the witness and it was thus unnecessary to include it in the question. The ruling was therefore erroneous. This evidence was directed at the very gravamen of plaintiff’s case; it cannot be doubted that the failure to permit appellant to impeach the witness on such a vital point was prejudicial error. Starr v. Los Angeles Ry. Corporation, 187 Cal. 270, 282, 201 P. 599.
The judgment is reversed.
We concur: CRAIL, P. J.; WOOD, J.