Frasca v. Warner

• Decision Date: 20 March 1967
• Citation: 57 Cal.Rptr. 683,249 Cal.App.2d 593
• Court: California Court of Appeals Court of Appeals
• Parties: Elva I. FRASCA et al., Plaintiffs and Appellants, v. Viola C. WARNER, Defendant and Respondent. Civ. 29755.

Page 683

57 Cal.Rptr. 683

249 Cal.App.2d 593

Elva I. FRASCA et al., Plaintiffs and Appellants, v. Viola C. WARNER, Defendant and Respondent.

Civ. 29755.

Court of Appeal, Second District, Division 4, California.

March 20, 1967.

Rehearing Denied April 6, 1967.

Hearing Denied May 17, 1967.

Richard Rathbun, Reseda, and James R. Ross, Canoga Park, for plaintiffs and appellants.

Gary W. Sawtelle, Hollywood, for defendant and respondent.

FOX, Associate Justice. ^*

This action grows out of an automobile accident. Verdict and judgment went for defendant. Plaintiffs have appealed.

The basic question on this appeal is whether the court prejudicially erred in admitting evidence as to the manner in which the accident occurred that was outside defendant's pretrial statement as to how it occurred.

The accident occurred in the late afternoon of May 22, 1961, on Vanowen Street, 195 feet east of the intersection of Vanowen Street and Van Alden Avenue in Reseda. Plaintiff, Elva I. Frasca, was eastbound in the southerly traffic lane which was unmarked. ¹ Defendant was traveling in the same direction. A rear end collision occurred.

In the joint pretrial statement defendant did not state the portion of the highway on which she was traveling, merely that she was 'eastbound on Vanowen Street.' In her separate pretrial statement defendant stated, under the heading Factual Issues Remaining in Dispute: '(a) The manner in which the accident occurred: Defendants ^* contend that defendant Viola C. Warner was driving her vehicle in an easterly direction behind the vehicle operated by plaintiff Elva Frasca; that after both vehicles crossed the intersection of Vanowen and Van Alden, and at a point about 195 feet past the intersection, said plaintiff, without proper or adequate warning or signal suddenly brought her vehicle to a stop to avoid colliding with a third vehicle which was attempting to back into a parking space at the curb; that said defendant applied her brakes and swerved her vehicle to the left, but was unable to avoid a collision, and the right front of defendant's vehicle struck the left rear of plaintiff's vehicle a glancing blow.'

Under the hearing Legal Issues Remaining in Dispute, defendant stated: '(a) Negligence of defendant Viola Warner. (b) Negligence of plaintiff Elva Frasca.'

In order to evaluate the problem at hand it is important to have a precise statement of the testimony of the operators of the two cars as to how the accident occurred. Plaintiff testified that she was traveling on Vanowen and stopped at its intersection with Van Alden because the traffic light was red. She 'was in the lane nearest to the parked cars.' ² There were no cars immediately behind her while she was waiting for the green light. She checked on that by looking in her rear-view mirror two or three times while waiting for the light to change. But there was a line of three cars to plaintiff's left. During this period plaintiff looked ahead and observed some distance away that the driver of a car was 'trying to back into a parking place' but was having some difficulty 'so he pulled out again to back in for the second time.' As she went through the intersection plaintiff observed 'There was quite a lot of traffic' on her left and that she 'could not get in the other lane,' so she 'proceeded very slowly'--about ten miles per hour--'anticipating that by the time I got to the person parking that he would park and I could proceed on.' She applied her brakes a couple of times to break her speed a little as 'I noticed he wasn't getting into the parking place as fast as I thought he would.' She did not know how close she was to the parking car when defendant's car hit her car 'from behind.' She said that the defendant's car pushed her car forward and the right front fender of her car hit the left front fender of the parking car (driven by a Mr. Cain) which 'was pointed in a northerly direction.' After the impact of plaintiff's car with the Cain car, the former was 'alongside' of the latter--'a little to the back,' according to Mr. Cain.

A police officer for the City of Los Angeles testified that Vanowen Street was 60 feet wide with a white line in the center; that the highway for both east and west travel was 30 feet. The officer was at the scene soon after the accident and placed the point of impact between plaintiff's and defendant's cars at 23 feet north of the south curb of Vanowen Street. He based his opinion as to the point of impact on the skid marks of the defendant's car, and the presence of debris and glass from both cars.

Plaintiff's testimony was that at the time of the impact she was driving in the lane (unmarked) next to the parked cars, and that no part of her car was in the lane to her left. She was asked this question on cross-examination: 'Did you swerve your car to the left just before the accident? A Absolutely not.'

Defendant testified that she stopped for the red light signal at the intersection of Vanowen and Van Alden in the lane next to the center line. She traveled in this same lane at a speed of 20 to 25 miles per hour until, as a result of her son's outcry, she observed plaintiff's car about a car's length away. Defendant slammed on her brakes and turned her wheels slightly to the left. She did not, however, cross over the center line of the roadway. Defendant's front right fender came in contract with plaintiff's rear left fender. It was a glancing blow. We then have these questions and answers:

'Q Will you state at the moment of this collision whether or not any part of Mrs. Frasca's (plaintiff) vehicle was occupying the lane or a portion of it that your car was in?

'A I would say yes.

'Q And at the moment of the collision can you tell us in what direction Mrs. Frasca's vehicle was pointed?

'A Northeast.

'Q And at the moment of the collision in what direction was your vehicle pointed?

'A East, slightly north.'

Mrs. Frasca's car was suddenly in front of defendant going very slow. 'Plaintiff gave no signal' but she did not make a sudden stop.

After defendant rested, plaintiff made 'a motion that the fact of the northeast direction of this automobile, any other matters in relation to any type of lane change or attempted lane change by defendant be stricken from the record as not in conformity with the written interrogatories and with the pretrial factual contentions of defendant.' ³ Plaintiffs also moved for a directed verdict or at least, that the court instruct the jury that contributory negligence was not an issue. Plaintiffs' motions were denied.

Reduced to its simplest terms, it is plaintiffs' position that, in view of defendant's pretrial statement as to the factual issues remaining in dispute, defendant could only establish contributory negligence on the part of plaintiff by evidence that, 'while driving in the southerly traffic lane, she (plaintiff) did in fact suddenly stop without sufficient reason or signal when defendant was behind her.'

It is important that we bear in mind the precise factual issue defendant stated remained in dispute: It is stated in this language: 'The Manner in Which the Accident Occurred.' (Italics in the record.) Then follows a statement of what 'Defendants contend' the evidence would show as to the manner in which the accident occurred. It appears that in some details defendant was in error. But it does identify the accident, its location, the parties involved; the fact a third party was attempting to park his car, that this interrupted plaintiff's forward progress, that defendant, in an effort to avoid hitting plaintiff's car applied her brakes and swerved her car to the left but was unable to prevent the right front of her vehicle hitting the left rear of plaintiff's vehicle a glancing blow. This leaves some uncertainty as to the lane of traffic (unmarked) in which defendant was traveling, and what plaintiff did when she found her forward progress interrupted by the car that was backing into the parking space. As to the lane in which defendant was traveling, it is true her counsel stated in the first and second lines of defendant's pretrial statement that she 'was driving her vehicle in an easterly direction behind the vehicle operated by plaintiff Elva Frasca;' after the semicolon the statement deals with operations of both vehicles after they crossed the intersection of Vanowen and Van Alden and no mention is made as to the traffic lane in which defendant was traveling. This circumstance has some...