Holling v. Chandler
| Citation | 50 Cal.Rptr. 219,241 Cal.App.2d 19 |
| Court | California Court of Appeals |
| Decision Date | 22 March 1966 |
| Parties | Kathryn Rose HOLLING, Plaintiff and Respondent, v. Bill Melvin CHANDLER, Defendant and Appellant. Civ. 22216. |
Campbell, Custer, Warburton & Britton, San Jose, George A. Strong, Santa Clara, of counsel, for appellant.
Ralph J. Gampell, San Jose, for respondent.
The only question presented by this appeal is the propriety of an order granting plaintiff's motion for a new trial for errors of law. Plaintiff filed this action for personal injuries sustained in a collision with a vehicle driven by defendant. After the jury brought in a verdict for defendant, the trial court granted plaintiff's motion for a new trial because it had admitted into evidence, for the limited purpose of impeaching plaintiff's expert witness, the results of an experiment conducted by defendant, and also because it failed to instruct the jury on the limited purpose for which this evidence was admitted. Defendant argues that the order granting the new trial cannot be sustained on either ground specified.
Before directly discussing the new trial proceedings, some reference should be made to the evidence. The accident occurred on a dry sunny morning in November 1960 at the intersection of Ross Road and Moreno Avenue in Palo Alto. Ross runs in a north-south direction and Moreno east-west; both are asphalt paved and about 36 feet wide. The intersection was controlled by a 'yield right-of-way' sign on the southeast corner. A solid concrete block fence about 3 1/2 feet high runs parallel to the east side of Ross Road and parallel to the south side of Moreno. Two trees on the eastern side of Ross, just south of the intersection, were in foliage at the time of the accident.
Defendant, accompanied by his wife, was driving north on Ross in his 1959 Dodge station wagon. As he approached the intersection, he noticed several children playing in the northwest corner but did not see the yield sign on the southeast corner or any other traffic. After looking to the right, he decreased his speed and entered the intersection at a speed of 5--10 miles per hour. When he was between one-quarter and one-half of the way into the intersection, he saw plaintiff's car about 35--40 feet away on his right but did not stop because he felt there was sufficient clearance for her to pass. He estimated her speed to be about 40 miles per hour. When the front of his car was in the center of the intersection, he accelerated and thus estimated his own speed at the time of impact to be 15--20 miles an hour. He did not apply the brakes and lost control of the car after the impact.
Plaintiff was driving west on Moreno in her 1960 Corvair. She turned onto Moreno from Fielding, two blocks east of Ross. As she crossed Marshall Street, one block (about 275 feet) east of the Ross Road intersection, she was in second gear. After crossing Marshall Street, she shifted into high gear, then took her foot off the accelerator to look down Ross and saw defendant's car. She estimated its speed to be approximately the same as her own, about 25 miles per hour.
The impact occurred in the northeast quadrant of the intersection, about 24 feet north of the south intersection line and 10 feet west of the east intersection line. Plaintiff's car struck defendant's car behind the right rear wheel and caused it to make a 180 degree turn and come to rest facing south, the direction from which it had come. After the impact, plaintiff's car moved about 1--3 feet.
The Palo Alto police officer investigating the accident indicated that plaintiff's car left 30 feet of right front and rear wheel skid marks and 27 feet left front and rear wheel skid marks in a straight line. Defendant's car left 78 feet of left near and right rear wheel side skid marks and 45 feet of left front wheel side skid marks, all at an angle in a northerly direction.
Plaintiff's expert witness, Dr. Laitone, was asked a series of hypothetical questions about the speed of both cars, based on his calculations that took into account the size, weight and year of both cars, the length and nature of the skid marks, the co-efficient of friction on dry asphalt pavement, the turning of defendant's car and the area of contract between the two cars. He testified that on the basis of his calculations, the speed of defendant's car at the point of impact was 29 miles per hour if the brakes had not been applied, and 40 miles per hour if the brakes had been applied; the plaintiff's speed at the time her skid marks started was about 25 miles per hour and at the point of impact, 14 miles per hour, assuming her car had moved 3 feet after the impact. He could not calculate plaintiff's speed before her wheels locked and she began to lay down skid marks. Dr. Laitone also pointed out that his answers to all of the hypothetical questions had an error of plus or minus 10 percent.
Defendant's expert witness estimated that plaintiff's speed at the time of impact was 10 miles per hour, and at least 35 miles per hour when the car started skidding, with a possible error of 10 percent. He could not determine the speed of defendant's car at the time of impact.
To impeach the testimony of Dr. Laitone that the 30 feet of skid marks left by plaintiff's car were the result of a speed of 25 miles per hour, defendant introduced the testimony of a private investigator, Mr. Currie, who was a passenger in a 1960 Corvair, driven by defendant's attorney, Mr. Britton, in a series of experiments. Currie testified that on two occasions, after the speedometer showed a speed of 25 miles per hour, Britton applied the brakes as hard as he could on level dry asphalt. The car left skid marks of 23 feet 7 inches and 24 feet 6 inches. In a subsequent test of the accuracy of the speedometer, a 15 percent error was found at speeds of 30 and 60 miles per hour.
On rebuttal, Dr. Laitone testified that if this 15 percent error had been taken into account, the car used in defendant's test was apparently going at a speed of 21 1/4 miles per hour when the speedometer showed 25. If the car had, in fact, been doing 25 miles per hour, it would have left skid marks of 34 feet 4 inches and 33 feet 3 inches, respectively.
The granting or denial of a new trial is a matter resting so largely in the discretion of a trial court that it will not be disturbed except upon a manifest and unmistakable abuse. This...
To continue reading
Request your trial
-
People ex rel. Dept. Pub. Wks. v. Hunt
...at p. 828. See also Gillingham v. Greyhound Corp. (1968) 263 Cal.App.2d 564, 569--570, 69 Cal.Rptr. 728; and Holling v. Chandler (1966) 241 Cal.App.2d 19, 25--26, 50 Cal.Rptr. 219.) Although the foregoing rules may apply to misconduct in arguments of counsel and to minor errors in instructi......
-
Schauf v. Southern California Edison Co.
...98; Grupe v. Glick, 26 Cal.2d 680, 685, 160 P.2d 832; Buratti v. Phetteplace, 196 Cal.App.2d 303, 309, 16 Cal.Rptr. 500; Holling v. Chandler, 241 Cal.App.2d 19, 1 50 Cal.Rptr. 219; Witkin, Calif.Evid. 361.) There were many possible variables between the conditions under which the accident o......
-
Mendoza v. Club Car, Inc.
...Cal.Rptr. 513.) By failing to preserve this issue below, CCI has waived the right to assert error on appeal. (Holling v. Chandler (1966) 241 Cal.App.2d 19, 25, 50 Cal.Rptr. 219.) In its reply brief CCI does not respond to Mendoza's argument that this claimed error was Further, even were we ......
-
Richard v. Scott
...which a new trial was granted. (Malkasian v. Irwin, supra, 61 Cal.2d 738, 747, 40 Cal.Rptr. 78, 394 P.2d 822; Holling v. Chandler, supra, 241 Cal.App.2d 19, 25, 50 Cal.Rptr. 219.) In any event, the error was manifestly prejudicial. As the trial judge observed, there was no other substantial......