Neumann v. Bishop

• Decision Date: 22 March 1976
• Citation: 59 Cal.App.3d 451,130 Cal.Rptr. 786
• Court: California Court of Appeals
• Parties: Vera B. NEUMANN, Plaintiff and Respondent, v. Mary Jane BISHOP, Defendant and Appellant. Civ. 35754.

Page 786

130 Cal.Rptr. 786

59 Cal.App.3d 451

Vera B. NEUMANN, Plaintiff and Respondent, v. Mary Jane BISHOP, Defendant and Appellant.

Civ. 35754.

Court of Appeal, First District, Division 1, California.

March 22, 1976.

Nagle, Vale, McDowall & Cotter by Bernard T. Cotter, San Mateo, for defendant and appellant.

Popelka, Allard, McCowan, Cabrinha & Jones, Bernard J. Allard, San Jose, Michael J. Murray, Eureka, for plaintiff and respondent.

SIMS, Associate Justice.

Defendant has appealed from a judgment which became final after plaintiff, in conformance with the trial court's order on defendant's motion for new trial, accepted a reduction to $280,000 from a jury verdict which awarded her $362,389.75 damages for injuries suffered as a result of an automobile collision. Defendant contends: (1) that the trial court erred in three particulars in the rulings on the admission of evidence; (2) that error was committed in instructing the jury; (3) that there was rampant misconduct of plaintiff's counsel which deprived the defendant of a fair trial; and (4) that the amount of the judgment, as reduced, is excessive. Although counsel's conduct cannot be condoned, there is no merit to defendant's other claims of error; and, on our review of the entire record, it does not appear as a matter of law that any prejudice that might have been occasioned by that conduct was not cured by the action taken by the trial court in reducing the verdict. The judgment must be affirmed.

I

On December 24, 1972, plaintiff was traveling south on Old Bayshore Highway. She testified she was going at a speed of 25 miles per hour. Defendant was driving east on Bayswater toward its intersection with the old highway, Bayswater ends at the old highway, forming a T-intersection, which is controlled by a stop sign and limit line on Bayswater. Defendant either stopped or hesitated at that point and then proceeded to turn into the old highway to travel in a northerly direction and collided practically head-on with the plaintiff's vehicle in the southbound lane.

--A--

A police officer of 20 years experience, who arrived at the scene shortly after the accident, testified that parked vehicles, a tree, and the fact it was raining would have obscured the defendant's vision to the north to some degree. The cars were parked along the west side of the old highway north of the intersection. He testified that at the time of the accident there was a clearly marked red zone on the west side of the old highway south of the intersection, but that he had no idea if there was any red zone on the north side. On cross-examination he was asked if he recalled that the northerly curb was painted red and in a faded condition on the day of the accident. Plaintiff's objection was apparently sustained after an unreported discussion at the bench.

It was defendant's theory below, reiterated on appeal, that she should have been able to show that the cars were illegally parked upon the old highway, and that in some way that fact would justify or excuse any failure on her part to perform the statutory duties governing the conduct of a driver under the conditions in which she proceeded into the intersection. (See Satterlee v. Orange Glenn School Dist. (1947) 29 Cal.2d 581, 592, 177 P.2d 279 (overruled in Alarid v. Vanier (1958) 50 Cal.2d 617, 622, 624, 327 P.2d 897); Evid.Code, § 669, subd. (b); BAJI Instruction No. 3.45; and 4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, §§ 540--541, pp. 2807--2809.) In this case the passive condition created by the parked cars was not an active factor in defendant proceeding at a time and in a manner which was not reasonably prudent. In Martin v. Nelson (1947), 82 Cal.App.2d 733, 187 P.2d 78, upon which defendant relies, the court, on appropriate facts, observed, 'When the violation (driving on the wrong side of the road) is caused by some independent force over which the violator had no control the violation is excused. (Citation.)' (82 Cal.App.2d 733, 735, 187 P.2d 78, 79.) If the cars were in fact illegally parked it would not excuse the defendant from exercising due care, but at best would only establish concurrent negligence of the defendant and the person who illegally obstructed the normal visibility. (See Rosa v. Pacific Gas & Electric Co. (1955) 133 Cal.App.2d 672, 674, 284 P.2d 844, and Peters, P.J. dissenting at p. 677, 284 P.2d 844.)

In considering plaintiff's contention the following is pertinent, 'Initially, it must be observed that a motorist proceeding along a through street or highway protected by stop signs has the right-of-way at intersections over motorists on intersection thoroughfares, even as against vehicles approaching from the right. The motorist on the through highway may assume that the driver of a car on the intersecting highway will observe the law. If the law requires the motorist on the intersecting highway to stop, the driver on the through highway must assume that he will stop and yield the right-of-way as the law requires. (Citations.)' (Bristow v. Brinson (1963) 212 Cal.App.2d 168, 173, 27 Cal.Rptr. 796, 799; Veh.Code, § 21802; and BAJI Instruction No. 5.12.) Any obstruction to the view of the driver on the through highway does not affect his right to make that assumption. (Bristow v. Brinson, supra, 212 Cal.App.2d at pp. 173--174, 27 Cal.Rptr. 796.) It would appear, however, that the obstruction of the view of the entering driver is merely one of the circumstances to be considered in determining whether a reasonably prudent person in the position of that driver, having made the required stop, would realize that another vehicle approaching the intersection would probably collide with his vehicle if he then proceeded to enter or cross the intersection. (See Potapoff v. Mattes (1933) 130 Cal.App. 421, 423, 19 P.2d 1016.) The cause of the obstruction is immaterial insofar as the duty of care imposed on the entering driver is concerned.

There was no error in sustaining the objection to the question designed to ascertain whether the parked cars which obstructed the view were parked in violation of law.

--B--

Plaintiff asked the officer who investigated the accident, 'And was there any evidence of excessive speed on behalf of (plaintiff)?' The court originally sustained the defendant's objection for lack of foundation. After the officer testified concerning his qualifications, the question was rephrased, and a further objection was overruled by the judge who observed, 'The only question is if he saw any evidence of excessive speed and I will let him answer the question.' The officer answered, 'No, there wasn't.' The officer had previously testified that the posted speed limit on the old highway was 35 miles per hour. On cross-examination the witness testified that he had traveled southbound on the old highway on occasions and that he had never noticed that there was a sign on the west side of the street north of the scene of the accident posted for 25 miles per hour, ¹ and he reiterated that it was posted for 35. He acknowledged that he had no idea of how fast the plaintiff was going at the time of the accident, but it was his impression, and he would say, she was not exceeding 35 miles per hour. He explained, 'There was no physical evidence to give me any indication of what speed she was going, there was no skidmarks, no markings on the pavement, I wouldn't really have any idea'; and he added that because of the amount of physical damage he observed, he doubted that the plaintiff was going in excess of 35 miles per hour, though it was possible she could have been going at that speed.

Defendant acknowledges, as set forth in Hart v. Wielt (1970), 4 Cal.App.3d 224, 84 Cal.Rptr. 220, 'It is generally established that traffic officers whose duties include investigations of automobile accidents are qualified experts and may properly testify concerning their opinions as to the various factors involved in such accidents, based upon their own observations. (Citations.)' (4 Cal.App.3d at p. 229, 84 Rptr. at p. 223. See also Davis v. Ward (1963) 219 Cal.App.2d 144, 148, 32 Cal.Rptr. 996; Evid.Code, § 801; and Witkin, Cal. Evidence (2d ed. 1966) § 418, p. 378.) She also recognizes that 'the responsibility for determining the competency and qualifications of an expert witness rests initially with the trial court. (Citations.) And on appeal the lower court's ruling will not be disturbed unless there has been an abuse of discretion.' (Crooks v. Pirrone (1964) 228 Cal.App.2d 549, 553, 39 Cal.Rptr. 622, 624. See also Hart v. Wielt, supra, 4 Cal.App.3d at p. 229, 84 Cal.Rptr. 220; and David v. Ward, supra, 219 Cal.App.2d at p. 148, 32 Cal.Rptr. 796.) She contends that the testimony that the officer saw no evidence of excessive speed gave a police stamp of approval to plaintiff's conduct and told the jury there was no evidence of wrongdoing on plaintiff's part, and that there was no ascertainable standard by which the opinion could be measured.

A review of the officer's testimony reflects that none of defendant's objections are tenable. The jury was instructed on the issue of contributory negligence, and that the prima facie speed limit was 25 miles per hour (see fn. 1 above). The officer's testimony of what he observed or failed to observe was only one circumstance to be considered in determining the issue of contributory negligence. No error is found in permitting the question and answer now referred to by defendant.

--C--

Plaintiff produced an economist to testify concerning her accrued and prospective loss of earnings. The witness testified concerning his qualifications, the data he gathered concerning the plaintiff's employment history, and the truism that at $600 per month she would lose $7,200 per year. Plaintiff's attorney commenced what appears to be a hypothetical question. The defendant objected to any testimony from the witness on the basis that it would be of a speculative nature and the...