Calderon v. Dispatch Trucking Co.

• Court: California Court of Appeals
• Writing for the Court: FOURT; WOOD, P.J., and LILLIE
• Citation: 268 Cal.App.2d 217,73 Cal.Rptr. 851
• Parties: Adolfo S. CALDERON, Plaintiff and Appellant, v. DISPATCH TRUCKING CO., Inc., a corporation, et al., Defendants and Respondents. Civ. 32322.
• Decision Date: 16 December 1968

Page 851

73 Cal.Rptr. 851 268 Cal.App.2d 217 Adolfo S. CALDERON, Plaintiff and Appellant,
v.
DISPATCH TRUCKING CO., Inc., a corporation, et al., Defendants and Respondents. Civ. 32322. Court of Appeal, Second District, Division 1, California. Dec. 16, 1968.

Page 852

[268 Cal.App.2d 218] J. B. Mandel, Los Angeles, for plaintiff and appellant.

McBain & Morgan, Angus C. McBain and Elmer O. Docken, Los Angeles, for defendants and respondents.

FOURT, Associate Justice.

This is an appeal from a judgment of non-suit in a personal injury damage action and an attempted appeal from an order denying a motion for a new trial.

Plaintiff brought the action September 25, 1962, in Los Angeles against Los Angeles County and the respondent herein. In the complaint plaintiff alleged generally that Figueroa and Temple Streets in Los Angeles are public streets, that on September 26, 1961, he was an occupant in an ambulance owned by Los Angeles County and operated by an employee of the county, 'travelling in a northerly direction on Figueroa Street, near the intersection with Temple Street.' that 'defendants JOHN DOE I and JOHN DOE II operating a truck owned by the defendant Dispatch Trucking Co., in a southerly direction on said Figueroa Street, caused certain injuries to the plaintiff * * *' (At the time of trial plaintiff moved to interlineate the complaint to show that the ambulance was traveling 'in a southerly direction, not northerly'--the court granted the motion.) It was alleged that the Does were the agents, servants and employees of the Dispatch Trucking Company and were in the course of their employment at the time of the accident, that defendants negligently drove and operated the vehicles so as to cause them to collide and that plaintiff was injured. He sought general and special damages. At the time of trial plaintiff moved to dismiss as against the County of Los Angeles and an order of dismissal was signed and filed. A jury was selected and evidence was taken. Because of the nature of the case we deem it proper to make a rather extensive statement of the facts as evidenced by the testimony of the witnesses. Cecil Palmiter testified that he at the time and place in question was driving an ambulance for the County of Los Angeles and was taking some out-patients (among them the plaintiff) to their respective homes, that the ambulance was being driven south on Figueroa Street near the intersection of Figueroa Street with Temple Street, that Temple Street goes over Figueroa Street where the streets intersect and on Figueroa Street there is a high wall [268 Cal.App.2d 219] along the on-ramp '* * * so that you can't see anything coming down that on-ramp, and as we got down to the end of that ramp * * * then I saw this truck alongside of me. On the left side of me there was a car so there was no place for me to go there and I seen he was getting closer to me and I braked to get over behind this other car, but as I started to move in behind this other car, truck, the trailer of the truck struck the right rear corner of the ambulance * * *' Palmiter stated that the vehicle which had struck the ambulance was

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of light green color, gondola type which unloaded from the bottom. He further described the vehicle and said that it 'was a truck, two trailers, two semis' with a load of dirt, and, 'There was no name or no number that I could see.' He further stated that the vehicle continued on and failed to stop. Palmiter testified that he then drove the ambulance onto the right side of the road, checked the patients, called his dispatcher and told the dispatcher where the trucks were coming from, '* * * right over in this area where the medical or musical center was being built, * * *' The dispatcher told the ambulance driver 'not spend too much time, but to go over and see if I could find out what truck it was.' Palmiter stated, 'There were trucks coming in and out of there, oh, every few minutes. As soon as they could get one loaded, it would leave and another one would come. * * * They were. They all looked alike. The trailer, the tractors were individual tractors.' The trucks, all similar in color and characteristics, were carrying dirt from the Music Center area. The witness remained in the area for a short period and then went back to the hospital with the patients to have then checked over. The accident was at about 3 p.m. The witness was asked by counsel for plaintiff, 'Did you ever have an opportunity to talk to the driver of the other vehicle?' and Palmiter answered, 'I wouldn't know who the driver was.' He...