Hope v. Arrowhead & Puritas Waters, Inc.

Plaintiff claims personal injuries as a result of having been struck from the' rear by one of defendant’s fork lift trucks while standing in the loading yard of the Arrowhead and Puritas Waters, Ine. Pacific Indemnity Company, carrier under a contract of Workmen’s Compensation insurance, filed a complaint in intervention. A jury trial resulted in a verdict in favor of defendant. Plaintiff Hope appeals from the judgment and order denying him a new trial.

Bound by the rule that a reviewing court must look to the evidence favorable to the finding or verdict, and to inferences reasonably dedueible therefrom, when ascertaining the sufficiency of the evidence (Guerra v. Balestrieri, 127 Cal.App.2d 511 [ 274 P.2d 443 ]), we briefly summarize the pertinent facts leading up to the impact.

Defendant, a water bottling plant, maintains a loading yard covering approximately one block in the middle of which stands a small office. In the area behind the building are stacked wooden crates of bottles and a shed to which small fork lift trucks drive back and forth moving filled and unfilled water bottles from place to place in the yard. Beneath the overhang of the shed is the tilting area in which conveyor belts bring filled bottles out of the filling room and return the empty

At approximately 9 a. m. on January 25, 1956, plaintiff, 49 years of age and an experienced truck driver, drove a truck onto defendant’s premises to deliver salt for his employer. He parked on the right side of the driveway next to the yard office, near one of defendant’s transport trucks. Having never been on the premises before, he went into the office to inquire where to dump the salt and was told to wait until a place was cleared for it. It was raining heavily. He returned to his truck and waited in the cab approximately one hour. The truck faced the tilting area where the loading and unloading

Experienced with fork lift trucks since 1949, the operator had been driving in and out of the tilting area that day since 8:05 a. m. and in a loaded truck had cut across back and forth in front of the truck in which the plaintiff had been seated. A few minutes before the impact, as he drove into the tilting area for another load, he had seen plaintiff in the yard office through the window. He swung to the left around to the pallet, picked it up, backed around, going “very slow,” a mile or a mile and a half an hour, put the truck in gear and about 15 feet from the edge of the overhang started forward approximately one mile an hour headed straight across into the storage yard to set down his load. The load he carried in front of him, approximately 5, 6 or 7 inches off the ground, was the normal load of five bottles high, three wide and two deep. He testified: “First when I backed out I looked backwards to see if there was a lift truck behind me. Naturally when a person backs up, you have to look back. Then as I straightened out I seen no one.” Although it was raining and fairly dark two strings of artificial lights were burning under the overhang. The operator was on the watch for other fork lift trucks. The area was empty but, as he straightened out, his vision forward was obscured by the load. He could see “to some extent” toward the left but could not see “very

Appellant contends first that there was not sufficient evidence of contributory negligence to sustain the verdict; and assigns as error three rulings made by the trial court to objections to the use of certain doctors’ reports in the cross-examination of expert medical witnesses.

The judgment having been based on a general verdict, we are unable to speculate on what particular ground the jury may have found against plaintiff, nor are we required to do so. A general verdict imports findings in favor of the prevailing party on all material issues (Moss v. Coca Cola Bottling Co., 103 Cal.App.2d 380 [ 229 P.2d 802 ]; Shields v. Oxnard Harbor Dist., 46 Cal.App.2d 477 [ 116 P.2d 121 ]); therefore we may assume the jury found that defendant exercised due care and it was not negligent; or, if defendant was negligent, its negligence was not a proximate cause of the alleged injury; or, if defendant’s negligence was a proximate cause of the accident, plaintiff’s own negligence contributed as a proximate cause thereof. Had the jury found against plaintiff on any one of these issues, and if there is substantial evidence in the record before us to support such an implied finding, the judgment must be sustained if the record is otherwise free from error. As the trier of fact which weighed the evidence, determined the credibility of witnesses and resolved the factual conflicts, the jury no doubt was influenced by the various omissions and evasions manifest in plaintiff’s testimony, by impeaching evidence concerning a series of other accidents and injuries suffered by plaintiff, by conflicting testimony relative to the nature, extent and seriousness of plaintiff’s condition, and by certain contradictory claims concerning his ability to work after a second accident.

Appellant has directed our attention solely to the matter of a purported implied finding of the jury relating to his

It is clear from the record that plaintiff, while on defendant’s premises, was struck from the rear by a loaded fork lift truck and that neither plaintiff nor the operator saw the other immediately prior to the impact. The evidence also establishes plaintiff’s long experience as a truck driver and in numerous loading yards; his previous familiarity with fork lift trucks and their operation; and his knowledge, based upon personal observation both for a period of years in loading yards and specifically in defendant’s yard immediately before the accident, that they operate “blind” when carrying a full load in front. Defendant conducted a private business on private property maintaining a yard devoted primarily to the continuous operation of loading and unloading, involving at least four or five fork lift trucks going in and out of runways up and down the yard all the time. By the very nature of the load transported and the manner in which it was carried, the normal operation of fork lift trucks includes the operator’s limited vision of what is immediately in front. No doubt it was due to the character of this operation, the speed with which it was carried on, the type of loading activities involved, and the continuous heavy flow of fork lift truck traffic in the area that caused defendant to post two warning or cautionary signs at either side of the entrance: “Stop. Loading area. Co. Vehicles only.” Plaintiff should have known from his experience in loading yards, his long familiarity with fork lift truck operations obtained from personal observation on defendant’s premises and elsewhere, the purpose of his visit, the nature and extent of the activities he observed in defendant’s yard the hour he sat in his truck, the potential danger and risk arising out of such continuous

Appellant’s remaining contentions relate to the use of the report of one doctor in the cross-examination of another, in support of which he cites Buchanan v. Nye, 128 Cal.App.2d 582 [ 275 P.2d 767 ], a case clearly inapplicable to the situation at bar. Therein plaintiff’s counsel, a lay witness, testified he did not wish to call as a witness on behalf of his client one Sosic because he could not vouch for him, partly because of a statement he had made to a police officer and contained in the officer’s report. On cross-examination, Sosic’s statement was read into the record in the form of a question. It is apparent from the court’s language that its ruling that it was improper was limited to the particular situation. It said at page 585: “(t)he fundamental question is whether, under the guise of cross-examination of an opposing attorney on the latter’s reason for not calling a witness deemed unreliable, counsel may read into evidence a written hearsay statement of the absent witness.” In the instant case, an entirely different rule applies to the cross-examination of an expert witness relative to his opinion and its sources, which is controlled by statute (Code Civ. Proc., § 1872).

His first claim is that the trial court erred in overruling appellant’s objection to the use of Dr. Jones’ report in the cross-examination of Dr. Jacobus. After testifying for plaintiff concerning his evaluation of him as a patient and his diagnosis of his condition, Dr. Jacobus, an orthopedic specialist who treated plaintiff, was asked by defense counsel on cross-examination if he had received a report from Dr. Jones (a neurosurgeon who had examined plaintiff at the request of plaintiff in intervention). He not only answered in

In forming his opinion an expert is not confined to his own experience or facts personally known or observed by him, but may take into consideration the products of his education and study of his profession. Although textbooks are generally inadmissible as hearsay, a doctor may give an opinion based in part on his study thereof (Healy v. Visalia, etc. R. R. Co., 101 Cal. 585 [ 36 P. 125 ]; Forrest v. Fink, 71 Cal.App. 34 [ 234 P. 860 ]); a doctor may testify to the history of an accident given him by a patient for the purpose of showing the basis for his opinion on injuries (Tierney v. Charles Nelson Co., 19 Cal.App.2d 34 [ 64 P.2d 1150 ]); and even though the opinion of an expert cannot be predicated on that of another, it is proper for an expert to express his own opinion based on facts testified to by another expert or on tests made by other experts (Christiansen v. Hollings, 44 Cal.App.2d 332 [ 112 P.2d 723 ]).

Once an expert offers his opinion, however, he exposes himself to the kind of inquiry which ordinarily would have no place in the cross-examination of a factual witness. The expert invites investigation into the extent of his knowledge, the reasons for his opinion including facts and other matters upon which it is based (Code Civ. Proc., § 1872), and which he took into consideration; and he may be “subjected to the most rigid cross examination” concerning his qualifications, and his opinion and its sources (Forrest v. Fink, 71 Cal.App. 34 , 41 [ 234 P. 860 ]). It is proper to draw from an expert testimony showing whether he has relied on

Of interest in this connection is the fact that Dr. Jones was subsequently called by the court to appear as a witness “because some mention was made of his report”; and he did so, sponsored by defendant. Plaintiff cross-examined him and had ample opportunity to fully question him concerning his report. He did not do so. This appears to render ineffective the “hearsay” argument suggested by appellant in his quote from Buchanan v. Nye, 128 Cal.App.2d 582 , at page 585 [ 275 P.2d 767 ]: “the question placed before the jury the clearly hearsay testimony of a witness unavailable for cross-examination. ...”

The foregoing applies with equal force to appellant’s claim that the trial court committed prejudicial error in permitting defense counsel to read excerpts from Dr. Jones’ report in his cross-examination of Dr. Erickson. We are unable to determine from the record whether Dr. Erickson considered Dr. Jones’ report in formulating his opinion. However, even had he not, we find no prejudice to plaintiff, since the greater portion of Dr. Jones’ report had already been read to the jury on the cross-examination of Dr. Jacobus prior to any testimony having been given by Dr. Erickson. Moreover, Dr. Jones’ report lost its “hearsay” nature when he was made available for plaintiff’s cross-examination.

Nor is there merit to appellant’s final contention that there was prejudicial error in permitting defense counsel to read excerpts from the report of Dr. Brockman in the cross-examination of Dr. Erickson. Dr. Erickson was plaintiff’s principal treating physician, who testified he remembered that Dr. Brockman (a psychiatrist and neurologist) examined plaintiff at the request of plaintiff in intervention. At one point in Dr. Erickson’s cross-examination, when asked if he had the benefit of Dr. Brockman’s report and findings, he