Dragash v. Western Pac. R. Co.

• Citation: 161 Cal.App.2d 233,326 P.2d 649
• Parties: Eli DRAGASH, an incometent person, by Dorothy Dragash, his Guardian ad litem, and Dorothy Dragash, Plaintiffs and Appellants, v. The WESTERN PACIFIC RAILROAD COMPANY, a corporation, Falstaff Brewing Corporation, a corporation, Cal-Hi Beverage Co., a corporation, Defendants and Respondents. Civ. 9254.
• Decision Date: 10 June 1958
• Court: California Court of Appeals Court of Appeals

Page 649

326 P.2d 649

161 Cal.App.2d 233

Eli DRAGASH, an incometent person, by Dorothy Dragash, his Guardian ad litem, and Dorothy Dragash, Plaintiffs and Appellants, v. The WESTERN PACIFIC RAILROAD COMPANY, a corporation, Falstaff Brewing Corporation, a corporation, Cal-Hi Beverage Co., a corporation, Defendants and Respondents.

Civ. 9254.

District Court of Appeal, Third District California.

June 10, 1958.

Rehearing Denied July 7, 1958.

Hearing Denied Aug. 7, 1958.

Perkins & Carr and Kenneth B. Cayocca, Sacramento, for appellants.

Johnson, Davies & Greve, Sacramento, for respondent Western Pac. R. Co. Fitzwilliam, Memering & McDonald, Sacramento, for other respondents.

VAN DYKE, Presiding Justice.

Eli and Dorothy Dragash appeal from a judgment following a jury verdict in favor of defendants Western Pacific Railroad Company, a corporation, and Cal-Hi Beverage Company, a corporation, hereinafter called respectively Western and Cal-Hi. Eli Dragash, who was alleged to be incompetent by reason of injuries suffered in the accident out of which this action arose, was represented by his wife, Dorothy, as guardian ad litem. Dorothy Dragash was also a party plaintiff.

On April 30, 1955, at a point in Sacramento where Western's tracks running north and south cross 'D' Street, an automobile in which Eli Dragash and Michael Pobar were riding came into collision with a train of Western. Cal-Hi was joined as a defendant upon the theory that it had illegally parked two trucks near the tracks in such a way as to further obscure an already obscured railroad crossing. Dragash sought to hold Western for negligent operation of its train and for negligent maintenance of its crossing.

Michael Pobar was killed, and Dragash, by reason of his injuries, had no recollection of events before, during or after the accident. He was unable to testify as to the cause of the collision. He alleged that he was driving the car and that Pobar was his passenger. These allegations were denied by Western and Cal-Hi who contended that Pobar was driving. The car belonged to Dragash. Which man was driving became a vital issue at the trial. Analysis of the alcoholic content of Pobar's blood made after his death showed that he was intoxicated. Respondents sought to establish that he was the driver and thus to impute to Dragash the conduct of Pobar, which respondents claimed was the sole proximate cause of the accident or at least proximately contributed thereto. If Dragash was the driver of the car he was entitled to the benefit of the presumption that he was operating the car with due caution at the time of the collision. Early in the case this contest developed and one of the main contentions on appeal is based upon the acceptance and rejection of evidence tending to prove which man was the driver.

It appears that other than the train crew there were no available eyewitnesses to the collision. Early in the presentation of appellants' case, Arthur L. Green, a city partrolman, was called to the stand. He had been the first officer to arrive at the scene and he made a report of his findings which were incorporated into the police investigation file. Green did not have the official file while testifying and used no part of it to refresh his memory while on the stand. One Schiro, a police officer next called by appellant, had been put in charge of the investigation at the scene of the accident. He and another officer made certain physical measurements, the other officer writing the measurements down in the form of field notes. These notes were a part of the accident investigation file, and before testifying Schiro had refreshed his recollection of the measurements and distances observed as they appeared in the field notes. From them he had made a diagram and he had this diagram with him and used it while testifying. Western cross-examined Schiro about the contents of the entire file of which defense counsel had a copy. Objections that hearsay and unqualified opinion evidence was being introduced were overruled, and Schiro was ordered to bring in the entire file. This he did. After receiving evidence that the file constituted the whole of the accident investigation made by the police department of the city, the entire file was introduced in evidence, marked as an exhibit in the case, and read to the jury. Thereafter, when the cause was submitted to the jury, this exhibit found its way into the jury room. It was prejudicially erroneous for the court to receive the entire file into evidence. A large number of people in pursuit of their official duties had done investigative work related to various phases of the police investigation of the accident and each person had made a report to the police department. The accident investigation file which was received in evidence was made up of these various reports by the individuals who had participated in the investigation. The file was not in any sense the work of one person and neither Officer Green nor Officer Schiro had personal knowledge of any of the contents of the investigation file except such parts as they had reported. It was contended at the trial, and has been contended on appeal, that the introduction of the file was justified by Section 2047 of the Code of Civil Procedure which in material part reads as follows:

'A witness is allowed to refresh his memory respecting a fact, by anything written by himself, or under his direction, at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his memory, and he knew that the same was correctly stated in the writing. But in such case the writing must be produced, and may be seen by the adverse party, who may, if he choose, cross-examine the witness upon it, and may read it to the jury.'

This section afforded no justification for the introduction of the file into evidence. It is settled law in California that Section 2047 applies only to the conduct of a witness while on the stand, that it does not require him to produce a writing which he consulted prior to the time he testified, and that 'production of notes for inspection may be compelled only where the witness uses them while on the stand and not where he refreshes his memory with them before being examined.' People v. Gallardo, 41 Cal.2d 57, 67, 257 P.2d 29, 35. Neither Green nor Schiro so conducted himself as to warrant the ordering of the file into the courtroom. Officer Schiro did testify that as a sergeant in the traffic department of the Sacramento Police Department the entire file came over his desk to be approved by him, yet he said he had no personal knowledge of any of the other reports and did not prepare them. Furthermore, Section 2047 refers to a writing made by the witness himself or under his direction stating facts he personally knew to be correctly stated. Obviously, the section affords no foundation for the introduction of the hearsay statement of other investigators. As will be shown, the file introduced was replete with such objectionable statements. There being no foundation laid for the introduction of any part of the investigative file, we will now proceed to summarize its contents sufficiently to show the damaging effect it must have had upon the appellants' case in the trial court.

The reports which made up the file were replete with hearsay statements as to conversations had with various people, some of whom were witnesses and some of whom were not. One officer's report stated that the engineer had said to him the train was going north at 15 miles per hour; that as it approached 'D' Street he saw the reflection of headlights from a vehicle coming east on 'D'; that he was then 40 feet back from the intersection and the car was 150 feet west of the crossing, coming very fast at a speed of 40 to 50 miles per hour; that when the engine was 10 feet south of the intersection the car was 50 feet west; that the headlights were on; that the bell was ringing; that he sounded the horn, but did not have time to apply the brakes. The officer stated that the rest of the train crew corroborated the statements of the engineer. The file contained a report that an officer had been told the left rear tire of the automobile left a mark 19 feet 8 inches north of the south curb, and 4 feet 7 inches west of the west rail lines; that there had been no skid prior to the accident. The file contained a letter to the Chief of Police by the District Attorney of the county, stating that after a review of the file, he had concluded there was insufficient evidence upon which to base a felony complaint against Dragash. Another officer reported a conversation with one Betty Jo Barrick, who told him she last saw Dragash two days before the accident and could not remember when she last saw Pobar; that she later changed her story, and that he concluded 'she was lying throughout my entire discussion, because she became very nervous and upset when I directly accused her of seeing Dragash on the evening of the accident. She kept repeating that she had not seen him. She was very visibly moved when I also accused her of the fact that perhaps...