Whittier

Action to recover damages for personal injuries caused by the falling of an elevator. The facts out of which the cause of action arose are the same as those which were presented in the case of Treadwell against the same defendants, reported in 80 Cal. 574 , the plaintiff and Treadwell having both been passengers on the elevator at the time of the accident. A verdict was rendered in favor of the plaintiff for $30,000, and from the judgment entered thereon, and also from the order of the court denying a new trial, the defendants have appealed to this court.

1. The case of Treadwell was tried in April, 1883, and a verdict rendered in favor of the plaintiff. While the cause was pending in the superior court on a motion for a new trial, the attorneys for the parties to the present action, who were also the attorneys for the respective parties in the Treadwell case, entered into the following stipulation: —

“ Stipulated that the testimony of D. A. Bangs, as given and taken down by the phonographic reporter on the trial of the case of John Treadwell against said defendants, W. F. Whittier et al., when written out in longhand, and certified as correct by said reporter, may be read and…

I concur in the judgment and in the opinion of Mr. Justice Harrison, except that part which holds that the testimony of th.e witness Ravekes, upon his re-direct examination, to the effect that while a member of the firm of Whittier, Fuller & Company he had advocated a settlement of plaintifPs claim for damages, was competent as an admission of *300 a fact by one of the parties in interest, and admissible as such against the other defendants. I cannot accept this as a correct rule of evidence. But still, in my opinion, the ruling of the trial court in admitting this Evidence can be justified upon another ground.

The witness, in his examination in chief, testified to material facts tending to show negligence on the part of the servant of defendants in his mode of operating the elevator at the time of the accident which resulted in the injury of which plaintiff complains. The entire purpose of the cross-examination, which was conducted with great skill on the part of the attorney for the defendants, seems to'" have been to show that some time after the accident the witness was compelled to withdraw from the firm of which he and the defendants were members, because he had overdrawn…