Waller v. Southern California Gas Co.

A jury awarded plaintiff $50,000 as damages for injuries received in an automobile accident. Defendant appeals from the ensuing judgment and from an order denying its motion for judgment notwithstanding the verdict. Its main contentions are that plaintiff was guilty of negligence as a matter of law, that defendant as matter of law was free from negligence, that grievous error was committed in receiving opinions of an expert witness who finally expressed an opinion as to how the accident happened.

A collision occurred in the immediate vicinity of the intersection of Cahuenga Boulevard and Victory Boulevard in the San Fernando Valley. Cahuenga, about 45 feet wide, runs north and south and has two northbound lanes and one southbound. Victory, 74 feet wide, runs northwest and southeast and intersects Cahuenga at an angle of about 45 degrees. The intersection is a major one with four traffic lights. The most easterly lane of Cahuenga is apparently intended for right-turning northbound vehicles, for there is an island just north of the southeast corner of the intersection so placed that right-turning traffic goes between that corner and the island. A white line divides the second and third lanes of Cahuenga, counting from the east. The normal lane for northbound vehicles turning to the right would be the most easterly one.

On the morning of June 26, 1956, at about 10:55 a.m., defendant’s 1948 Chevrolet half-ton pickup truck was northbound in the middle lane of Cahuenga, the one next the white line, and plaintiff was following it, driving a 1947 Mercury sedan. The vehicles collided and the right rear corner of the truck came into contact with the left doors of the sedan. Plaintiff’s left arm was practically torn off in the accident. He fell out of his car and it went across Victory, jumped the curb and stopped on a lot at the northeast corner of the intersection.

Officer Schott fixed the point of impact at the center of the dirt and debris on the street, approximately 39 feet south of the south curb of Victory Boulevard and 22 feet west of the east curb of Cahuenga. This means in the center lane, not the one for right-turning. The officer made a diagram at the scene; it shows the truck at the south line of the crosswalk. The map in evidence (Exhibit 12) scales a width of about 17 feet for the crosswalk measured along a north-south line; the balance of the 39 feet fairly represents the length of the truck, say 20 feet, and a 2-foot distance between its front and the south line of the crosswalk. The truck is thus placed where Logue, Pashby and McGrath said it was.

Logue testified that he had no intention of making a right turn, that his business was to the left. His route extended both east and west of Cahuenga and he said he did not know whether his orders were for locations east or west of the intersection, but he added: “I know I had to turn left. That is the direction I was going. I don’t know the direction of the house I was setting forth.” Under prodding from plaintiff’s attorney Mr. Bradley, who was defendant’s superintendent of customer service in the San Fernando Valley division, found and produced all of Logue’s unfinished orders for the day of the accident and in each instance they required him to go to the west and south of the intersection.

There is no evidence that Logue had any occasion to turn right or that he intended so to do. Respondent claims that the evidence of Mrs. Edith Barron affords support for such an inference. She was the operator of a restaurant on the

This assumption of a potential right turn was wholly unwarranted by any evidence then or thereafter in the record other than the expert’s opinion. And the assumption of a prospective right turn by the truck was the sole basis for any inference that the truck was backing and thus ran into plaintiff’s sedan. Without a right turn there could be no possibility of a backing by defendant’s truck. But on the assumption of such an intended turn the expert witness proceeded to develop the theory of plaintiff’s attorney that the truck backed into plaintiff’s car.

This witness had examined the intersection a few days before the trial and was familiar with the photographs in evidence showing the damage to the two vehicles. On this basis, plus certain hypothetical questions, he expressed his opinions. Appropriate objections were' made as his testimony progressed. The questions assumed that no tires had been blown out, although there was no evidence on that subject other than the photographs which do not fully support the assumption. It was further assumed that the brakes of the Mercury were applied 30 feet south of point of impact and laid down 30 feet of skid mark leading up to that point (which facts are in evidence). On this basis the witness said that if it was a one-wheel mark it would work very little diminution in speed of the car; that if traveling 20 miles an hour (25 miles was the lowest estimate of any witness) and if the other wheels were not skidding, the car would lose 2 to 3 miles per hour. Assuming a speed of 25 miles (warranted by the record) and a diminution of three to four miles (not supported by any testimony), and the Mercury going 22 miles at impact, the physical damage caused thereby was said to work a diminution of speed of five miles an hour. The witness then said the impact was a very light one, an inference which the photographs do not support. Based on all the foregoing hypotheses Mr. Snyder opined that the Mercury was going 15 to 18 miles at the time of impact. Then he said that if an automobile makes a right turn the rear wheels will follow inside and further to the right than the front wheels, hence, if the front wheels clear an object (the truck) so will the rear of the vehicle, and that there can be no impact with the side of it unless it makes a side skid

While there is no ironclad rule that an expert cannot express an opinion upon the ultimate question in a case, the Supreme Court said in People v. Wilson, 25 Cal.2d 341 , 349 [ 153 P.2d 720 ] : “ ‘We think the true rule is that admissibility depends on the nature of the issue and the circumstances of the case, there being a large element of judicial discretion involved. . . . Oftentimes an opinion may be received on a simple ultimate issue, even when it is the sole one, as for example where the issue is the value of an article, or the sanity of a person; because it cannot be further simplified and cannot be fully tried without hearing opinions from those in better position to form them than the jury can be placed in.’ ”

As a general rule such opinions upon the ultimate issue should not be received in automobile accident cases. Some of the reasons are well stated in Fishman v. Silva, 116 Cal. App. 1 , 3 [ 2 P.2d 473 ] : “It is needless to add, as in all such cases, there is presented a wide field for argument, the main theme of which is physical facts and the so-called immutable laws of physics. Contentions based on these foundations are usually not convincing, strange as it may seem, for the simple reason that in partisan presentation there is an ever-present temptation to forget essential facts which do not fit in. For instance, where it is argued that where there is a contact of two bodies in a given position, the direction of

The soundness of this view is illustrated by the situation at bar. Mr. Snyder, viewing the photographs, said the impact was very light. The jurors, looking at the same exhibits, properly could conclude that it was quite heavy or it could not have inflicted the damage there shown. The witness rested his ultimate opinion upon the absence of sidewise skid or brush marks. The ordinary juror would be quite competent to draw the inference that when the. sedan ran into the truck the impact was heavy enough to cause it to bounce to the right and for that reason leave no brush marks. The theory that an arcuate skid mark spells inability of the middle of the Mercury to hit the corner of the truck if the front wheels pass it, presupposes a mild contact and the jurors well could conclude that that condition did not exist and that plaintiff’s sudden turn at the last second in order to avoid the truck precipitated the side of his car against the corner of the truck, causing the whole Mercury to bounce or fly through the air to the right.

We do not consider plaintiff’s cited eases to be opposed to the views just expressed. (Zelayeta v. Pacific Greyhound Lines, supra, 104 Cal.App.2d 716 , 723, 727; Norman v. Tully, 149 Cal.App.2d 530 , 532-534 [ 308 P.2d 875 ] ; Lynch v. Birdwell, 44 Cal.2d 839 , 849 [ 285 P.2d 919 ]; Wells Truckways, Ltd. v. Cebrian, 122 Cal.App.2d 666 , 671, 676-678 [ 265 P.2d 557 ]; Enos v. Montoya, 158 Cal.App.2d 394 , 398-399 [ 322 P.2d 472 ] ; Colbert v. Borland, 147 Cal.App.2d 704 , 708-709 [ 306 P.2d 53 ].) They involve substantially different factual situations which, so far as they present ultimate questions of fact, constitute nothing more than permissible departure from the general rule above stated.

We hold that prejudicial error was committed in the case at bar. There was no factual basis for the assumption of an impending right turn of the truck and hence no predicate for the further assumption of a backing truck; the stickers placed on the map to represent the positions the truck might have occupied, if it was to make a right turn, were misleading ; the hypothetical questions put to the witness incorporated facts which were not in evidence; the final explanation of the accident invaded the province of the jury because it dealt with inferences which they were competent to draw and the subject matter did not lie exclusively in the field of an expert. “The opinions of experts are admitted in

The error is of such nature and magnitude that we are of the opinion “that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error,” and hence a miscarriage of justice follows. (People v. Watson, 46 Cal.2d 818 , 836 [ 299 P.2d 243 ].)

Defendant’s appeal from the denial of its motion for judgment non obstante is governed by the same rules as one taken from a nonsuit or a directed verdict. (Estate of Arnold, 16 Cal.2d 573 , 581 [ 107 P.2d 25 ] ; Devens v. Goldberg, 33 Cal.2d 173 , 177 [ 199 P.2d 943 ] ; Champion v. Bennetts, 37 Cal.2d 815 , 820 [ 236 P.2d 155 ].) But we must take the record as we find it. We cannot strike or disregard any evidence favorable to the prevailing party merely because it was erroneously received. (Non-Refillable Bottle Co. v. Robertson, 8 Cal.App. 103 , 105 [ 96 P. 324 ] ; O’Connor v. Hooper, 102 Cal. 528 , 529 [ 36 P. 939 ]; Wright v. Roseberry, 81 Cal. 87 , 91 [ 22 P. 336 ] ; Gregg v. Western Pac. R. R. Co., 193 Cal. 212 , 216 [ 223 P. 553 ].) Aside from other questions the presence in the instant record of Mr. Snyder’s opinion as to how the accident happened precludes a reversal of the order denying the motion for judgment non obstante.

The judgment is reversed. The order denying motion for judgment notwithstanding the verdict is affirmed.

Fox, P. J., and Herndon, J., concurred.

A petition for a rehearing was denied June 25, 1959, and respondent’s petition for a hearing by the Supreme Court was denied July 22, 1959. Gibson, C. J., and Peters, J., were of the opinion that the petition should be granted.