Davis v. Ward

• Decision Date: 08 August 1963
• Citation: 32 Cal.Rptr. 796,219 Cal.App.2d 144
• Court: California Court of Appeals Court of Appeals
• Parties: Francis L. DAVIS et al., Plaintiffs and Appellants, v. George J. WARD, Defendant and Respondent. Civ. 6991.

Page 796

32 Cal.Rptr. 796

219 Cal.App.2d 144

Francis L. DAVIS et al., Plaintiffs and Appellants, v. George J. WARD, Defendant and Respondent.

Civ. 6991.

District Court of Appeal, Fourth District, California.

Aug. 8, 1963.

Rehearing Denied Sept. 3, 1963.

Hearing Denied Oct. 1, 1963.

Casey, McClenahan & Christensen, and George R. McClenahan, San Diego, for plaintiffs and appellants.

Oakes & Horton and Harry H. Horton, Jr., San Diego, for defendant and respondent.

COUGHLIN, Justice.

This action arises out of an intersection accident between two automobiles; is based on a claim for damages by a guest in one of these automobiles, and by her husband, against the driver of the other; and, on appeal, concerns alleged errors in the admission of evidence and the refusal to give proposed instructions.

Many of the issues raised by the pleadings were eliminated prior to trial. The original plaintiffs were the guest, her husband, and the driver of the automobile in which she was riding, who was her grandson. The driver died before trial and the action in his favor was dismissed. The answer, among other things, pleaded a joint venture between the guest and the driver; contributory negligence of the driver; and imputation thereof to the guest. However, prior to trial, the defense based upon imputation of negligence was stricken. Also, before trial, it was stipulated that the issues before the court were: (1) The negligence, if any, of the defendant driver; (2) contributory negligence, if any, of the guest; (3) proximate cause; and (4) damages. In addition, it then was stipulated that the issue of contributory negligence of the guest, which had been raised by a separate defense, would not be submitted to the jury if the evidence did not warrant such submission; the evidence did not indicate any contributory negligence; no instructions were given with respect thereto; no arguments were presented thereon; and, as agreed, the issue in question was not submitted for decision.

The jury found in favor of the defendant. Judgment was entered accordingly. After denial of their motion for a new trial, the plaintiffs appealed from the judgment and seek a reversal upon the ground that the trial court erred (1) in admitting the opinion testimony of a police officer respecting the speed of the automobile in which the plaintiff guest was riding; (2) in refusing to give their requested instruction that any negligence of the plaintiff driver was not imputable to the plaintiff guest; and (3) in refusing to instruct, as requested, that the plaintiff driver, now deceased, was presumed to have exercised due care.

The plaintiff guest was injured when the automobile driven by her grandson and the automobile driven by the defendant collided in an intersection while the former was in the process of crossing the same and the latter was in the process of making a left turn. The accident happened at the signal-controlled intersection of 32nd Street and Main Street, in the City of San Diego. At this intersection, 32nd Street is in a 25 mile per hour speed zone; runs north and south; is 52 feet in width; and includes a slight jog as it crosses Main Street. The defendant, while traveling southerly on 32nd Street at 15 miles per hour, slowed down to make a left turn at the subject intersection looked for traffic coming from the south, i. e., in the north-bound lanes, and saw none; entered upon his left turn at a speed which he estimated to be five miles per hour; looked in the direction he was turning; was warned by an outcry from a passenger in his automobile that an automobile was coming from the south which he had not seen because 32nd Street at a point south of the intersection is much lower in grade than at the intersection; stopped his automobile when it had crossed but a short distance into the north-bound lane immediately adjoining the center of the street, and was struck by the oncoming automobile, in which the plaintiff guest was riding. The plaintiff automobile approached the intersection as speeds estimated to be from 45 to 70 miles per hour; laid down front wheel skidmarks 69 feet in length and rear wheel skidmarks 61 feet in length; struck the left front of the defendant's automobile; and came to a stop to the north and east thereof after leaving a 6-foot centrifugal skidmark.

The collision occurred somewhere within the area encompassed by the intersection of the inside north-bound lane of 32nd Street and the inside east-bound lane of Main Street.

ADMISSION OF OPINION TESTIMONY RE SPEED

The investigating traffic officer, upon questioning by the defendant, related his qualifications to give an opinion respecting the speed of an automobile involved in an accident based on factors disclosed by his investigation thereof; stated that he had formed an opinion respecting the speed of the plaintiff automobile immediately prior to application of its brakes, based on physical facts found at the scene of the accident, including skidmarks, damage to the vehicles, and other details which might be considered pertinent; and, over objection by the plaintiffs, testified that in his opinion the plaintiff driver was traveling between 45 and 50 miles per hour at that time. The plaintiffs contend that the admission of this opinion was error because the evidence does not establish the officer's qualifications in the premises.

A traffic officer whose duties include the investigation of automobile accidents may qualify as an expert entitled to give an opinion respecting the speed of automobiles involved in an accident, based on his observations obtained in the course of his investigation thereof. (People v. Haeussler, 41 Cal.2d 252, 260-261, 260 P.2d 8; Enos v. Montoya, 158 Cal.App.2d 394, 399, 322 P.2d 472; Risley v. Lenwell, 129 Cal.App.2d 608, 631, 277 P.2d 897; Zelayeta v. Paciffic Greyhound Lines, 104 Cal.App.2d 716, 721, 232 P.2d 572.) The sufficiency of the showing to establish the qualifications of such an officer to give such an opinion is a matter committed to the sound discretion of the trial court. (People v. Haeussler, supra, 41 Cal.2d 252, 261, 260 P.2d 8; Pfingsten v. Westenhaver, 39 Cal.2d 12, 20, 244 P.2d 395; Mirich v. Balsinger, 53 Cal.App.2d 103, 114, 127 P.2d 639.)

We have reviewed the evidence in support of the instant showing; have concluded that the trial court did not abuse its discretion in the premises; and may not interfere therewith. (People v. Haeussler, supra, 41 Cal.2d 252, 261, 260 P.2d 8, Huffman v. Lindquist, 37 Cal.2d 465, 476, 234 P.2d 34, 29 A.L.R.2d 485.) It is not necessary that we detail the evidence in support of this conclusion. (Fomco, Inc. v. Joe Maggio, Inc., 55 Cal.2d 162, 164, 10 Cal.Rptr. 462, 358 P.2d 918.) The arguments and alleged insufficiency of the evidence to which the plaintiffs direct our attention in their attack upon the subject officer's qualifications go to the weight to be given his opinion rather than to its admissibility. These are not proper subjects for consideration on appeal. (Pfingsten v. Westenhaver, supra, 39 Cal.2d 12, 20, 244 P.2d 395.)

The plaintiffs also contend that the officer's opinion was inadmissible because it was based upon the statements of witnesses as well as upon physical factors he observed at the time of his investigation. This fact was developed upon cross-examination; was not before the trial court at the time it overruled the plaintiffs' objection to the admission of the officer's opinion; and, therefore, may not be considered in determining the propriety of that order. Furthermore, a fair consideration of the record dictates the conclusion that the statements to which the officer referred as included within the factors he considered as a basis for his opinion were those of the defendant to the effect that he had stopped prior to the time of impact; were of insignificant weight in the premises; and...