Calderon v. Dispatch Trucking Co.
Citation | 268 Cal.App.2d 217,73 Cal.Rptr. 851 |
Court | California Court of Appeals |
Decision Date | 16 December 1968 |
Parties | Adolfo S. CALDERON, Plaintiff and Appellant, v. DISPATCH TRUCKING CO., Inc., a corporation, et al., Defendants and Respondents. Civ. 32322. |
J. B. Mandel, Los Angeles, for plaintiff and appellant.
McBain & Morgan, Angus C. McBain and Elmer O. Docken, Los Angeles, for defendants and respondents.
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 along the on-ramp Palmiter stated that the vehicle which had struck the ambulance was 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, 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 said that he recognized the truck and trailer.
A re sume of plaintiff's testimony is as follows:
At the time of the accident, he, the plaintiff, was in a little chair in a corner of the ambulance. He could see the street through the windows in the doors and at the top of the ambulance--he could see very well. He didn't see the trailer in that moment. The truck had a color, green, and it had a yellow color too, and the truck was like the car they use in trains, in the railway, to take freight--(witness meant gondolas). Further that after stopping, checking the patients (and calling his dispatcher according to the driver) Mr. Palmiter then took them to the Music Center. Palmiter talked to people there but he, Calderon, did not hear what was said.
Calderon was questioned by his own counsel and answered as herein set forth:
'Q Did you notice any trucks similar to the truck there?
'Q Description?
'A Description, and I noted that one has a number 10 in the left door.
'* * *rip
'Q Mr. Calderon, do you recall when you were in the ambulance, at the time that the truck and trailer was to your left, did you notice any number on the bus, any number on the trailer?
'* * *Cal
'A Well, Mr. Palmiter took us to the Music Center.
'A Yes.
'A Yes, sir.
'A No. I don't understand.
'Q Well, were they all, all that you saw, similar to the ones that you saw involved in this accident?
'A Yes, sir.
'Q Now, did you ever see the, a number on any of the trucks or trailers?
'A In that moment when Mr. Palmiter opened the door * * * when we were there in the Music Center, one truck was right in front of us...
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Myles v. County of Los Angeles, B198174 (Cal. App. 12/10/2008)
...the imposition of liability against the County. The circumstances here are remarkably similar to those in Calderon v. Dispatch Trucking Co. (1968) 268 Cal.App.2d 217. There, the plaintiff was a passenger in an ambulance which was hit by a truck. Both the plaintiff and the ambulance driver t......