Augustus v. Bean

• Decision Date: 05 June 1959
• Citation: 171 Cal.App.2d 160,340 P.2d 37
• Court: California Court of Appeals Court of Appeals
• Parties: Harry C. AUGUSTUS, Plaintiff, v. Cecil Compton BEAN, William C. Bean, Aaron Shaffer, First Doe, Second Doe, Third Doe, Fourth Doe and Fifth Doe, Defendants. Harry C. AUGUSTUS, Plaintiff-Respondent, and Cecil Compton Bean and William C. Bean, Defendants and Cross-Defendants, v. Aaron SHAFFER, Defendant and Cross-Complainant-Appellant. Civ. 23406.

Page 37

340 P.2d 37

171 Cal.App.2d 160

Harry C. AUGUSTUS, Plaintiff, v. Cecil Compton BEAN, William C. Bean, Aaron Shaffer, First Doe, Second Doe, Third Doe, Fourth Doe and Fifth Doe, Defendants.

Harry C. AUGUSTUS, Plaintiff-Respondent, and Cecil Compton Bean and William C. Bean, Defendants and Cross-Defendants, v. Aaron SHAFFER, Defendant and Cross-Complainant-Appellant.

Civ. 23406.

District Court of Appeal, Second District, Division 1, California.

June 5, 1959.

Schell, Delamer & Loring, Fred B. Belanger, Los Angeles, for appellant.

Spray, Gould & Bowers, Los Angeles, for respondents, Cecil Compton Bean and William C. Bean.

Francis J. Gabel, Los Angeles, for respondent Harry C. Augustus.

LILLIE, Justice.

Plaintiff sued defendants for personal injuries arising out of a collision between a Hudson driven by defendant Shaffer and a Buick driven by defendant Bean. Shaffer filed a cross-complaint against Bean for property damage. The jury returned a verdict for $11,500 in favor of plaintiff against both defendants and against cross-complainant Shaffer in favor of cross-defendant Bean. Shaffer is the appellant herein. Bean does not appeal, acquiescing in the judgment in favor of plaintiff.

At the outset, it is conceded that no negligence could rightfully be imputed to plaintiff who was seated in his car at the corner awaiting a signal change. From the verdict it is obvious the jury believed that both defendants were negligent and the negligence of each was a concurrent proximate cause of plaintiff's injury. Appellant does not question the sufficiency of the evidence to support the jury's verdict, but contends that the trial court committed reversible error in denying his motion for mistrial for misconduct of counsel; admitting certain opinion evidence of a police officer; and giving instructions on the subject of future detriment or expense.

Although he predicates his first two contentions on the argument that the conflict in the evidence presented such a close question of liability that 'in the light of the entire record' the jury would likely have accepted his theory that Bean was solely responsible for the accident had it not been for the trial court's errors, appellant fails to point out wherein the alleged 'close question of liability' lies and of what it consists; or even set forth enough of the evidence to show the alleged conflict.

Since in the determination of prejudicial error, the test is whether the result would have been different had the alleged error not been committed (Weaver v. Shell Co., 34 Cal.App.2d 713, 94 P.2d 364), it is necessary to consider all of the evidence relating to the cause of the accident. Far from the close question of liability contended by appellant, the record reveals a state of facts from which it would not have been reasonable for the jury to have found appellant Shaffer free from negligence or that his acts did not contribute proximately to the happening of the accident.

Defendant Bean testified he was driving his Buick northbound on Sepulveda intending to make a left turn west on Devonshire. As he approached the intersection he stopped in the crosswalk for the traffic light. When it turned green he slowly proceeded turning left between the islands separating the east from the west portion of Sepulvada. He had his foot on the brake but did not stop as his speed was so slow his speedometer was not registering, the car 'dragging itself on idle.' No other traffic was moving. Approximately three cars eastbound on Devonshire had stopped in the island-way between north and south traffic on Sepulveda. As he strightened out of his turn to go through the balance of the intersection, Bean observed that the traffic in the first two lanes near the island southbound on Sepulveda, filled five or six cars back, was standing still. None had started into the intersection. The driver in the first car in lane No. 1, next to the island, motioned him through and the driver in the first car of lane No. 2 waited. Bean looked up the third lane near the curb and, finding it completely empty as far as he could see, looked back to the left and accelerated 'pretty good' to get out of the intersection. He passed in front of the waiting traffic in lanes 1 and 2, and as he started to pass the third lane, appellant Shaffer drove into the intersection through the No. 3 lane, hitting him squarely on the right front tire, moving Bean's car into plaintiff's standing vehicle. Bean did not see Shaffer prior to the impact.

Plaintiff testified he was waiting headed east on Devonshire on the west side of Sepulveda. Bean was trying to turn left on Devonshire and as he entered the southbound portion of Sepulveda he increased his speed to between 20 and 25 miles per hour. The cars in lanes 1 and 2, southbound on Sepulveda, were standing still. Appellant Shaffer, southbound in lane No. 3, drove into the intersection past the standing cars in the first and second lanes. Plaintiff heard the screech of brakes and saw Shaffer turn slightly to the left, striking Bean's car, the impact throwing it into his.

Robert H. Smith testified he was behind Bean, northbound on Sepulveda. As Bean proceeded into the intersection and turned left, he was moving 'rather slowly,' about four or five miles per hour. No cars entered or passed through the intersection, the first and second lane of southbound traffic remaining stationary. Upon making his turn, he forged ahead 'rather rapidly.' Smith saw appellant come into the intersection from the third lane next to the curb driving thirty to thirty-five miles per hour but did not see him slow down as he approached, although at the last minute he swerved.

Appellant Shaffer testified he was travelling between twenty-five and thirty miles per hour in lane No. 3 near the curb. Although aware of the cars in lanes 1 and 2, he did not know if they were moving or standing. Lane 3 was clear for 160 feet and no other car entered the intersection before him. Throughout his travel into the intersection he was looking at the traffic light, driving approximately twenty-five miles per hour. There appears to be a conflict in his testimony as to when he first saw Bean, but it is clear that when he did it was too late to avoid the accident. In his statement to the police officer, Shaffer said he was going twenty to twenty-five miles per hour and that he did not see Bean 'at all.'

The police officer testified he measured twelve feet of skidmarks from the front wheel of Shaffer's car to the point of impact. The evidence also shows that Bean was already through the intersection and into that portion of Sepulveda for southbound traffic a distance of twenty-eight feet before he was struck by appellant.

From the record before us, the jury could have hardly drawn any other conclusion than that appellant was negligent in driving down an open lane past two full lanes of standing vehicles, into an intersection obscured to him by solid traffic on his left, without slowing down, without taking his eyes from the traffic light and paying attention to the intersection before him, and without keeping his vehicle under such control that he could stop in sufficient time to avoid a collision. We perceive neither a close question of liability, nor how a reasonable jury could have exonerated appellant from negligence or found the proximate cause of the accident the exclusive conduct of defendant Bean. We cannot agree that the state of the evidence is such that the alleged procedural errors were responsible for the jury's finding that appellant was liable with Bean.

As to the alleged misconduct of Mr. Gabel, counsel for plaintiff, and Mr. Bradish for defendant Bean, the record discloses that one Reiter was driver of the first automobile in lane No. 1, which remained stationary to permit Bean to go through the intersection.

In his opening statement, Mr. Bradish told the jury that 'one of the witnesses to the accident, a Mr. Reader (sic) who was in one of the stopped southbound cars, had passed away and is not available.' Thereafter, no further mention of Reiter occurred until on cross-examination of Officer Slattery, Mr. Bradish, without objection, asked if he talked to Reiter. Slattery replied in the affirmative. At this point, a recess was taken, and in chambers a discussion occurred among Mr. Bradish, appellant's counsel, and the trial judge, wherein appellant's counsel objected to any question Mr. Bradish might ask the officer concerning what Reiter told him. Mr. Bradish said he did not intend to ask him the contents of the statement. The judge told Mr. Bradish to 'let it stand at that * * * you can't go into the statement.' Appellant's counsel then offered to stipulate with Mr. Bradish that Reiter is dead, which offer the record fails to disclose was accepted. Resuming cross-examination in open court, Mr. Bradish, without objection, again asked the officer whether he talked to Reiter at the scene and took a statement from him, and upon an affirmative answer, pursued the subject no further.

Mr. Gabel on cross-examination of the officer asked: 'This witness right here that you talked to was here in number one lane at the crosswalk and stopped, wasn't he?' Appellant objected and, having in mind the stipulation offered by appellant's counsel in chambers, Mr. Gabel asked both counsel to stipulate that if his process server were called 'he would testify that Mr. Reiter is dead.' However, appellant's counsel stated he would not do so, but would stipulate 'that each of the three parties * * * attempted to subpoena a Mr. Reiter, that each of the three parties to this action were advised by their respective process servers that Mr. Reiter is dead,' which offer was accepted. Then Mr. Gabel said 'If I do not go too far, gentlemen, I have ascertained that there was no adult in the car with Mr. Reiter, only his small son. There was no other member of his family to be brought in. In view of that, will you...