Newman v. Los Angeles Transit Lines

• Decision Date: 19 October 1953
• Parties: NEWMAN v. LOS ANGELES TRANSIT LINES. Civ. 19269.
• Court: California Court of Appeals Court of Appeals

Page 95

262 P.2d 95

120 Cal.App.2d 685

NEWMAN v. LOS ANGELES TRANSIT LINES.

Civ. 19269.

District Court of Appeal, Second District, Division 2, California.

Oct. 19, 1953.

Rehearing Denied Nov. 3, 1953.

Hearing Denied Dec. 17, 1953.

Paul L. Zimmerman and Roger W. Powers, Los Angeles, Yetta Newman, in propria persona, for plaintiff and appellant.

Trippet, Newcomer, Yoakum & Thomas, Robert C. Carlson and Henry F. Walker, Los Angeles, for defendant and respondent.

MOORE, Presiding Justice.

From a judgment based upon a unanimous verdict rejecting her suit for damages for personal injuries, plaintiff prosecutes this appeal. She asserts that the 'judgment was obtained by fraud, perjury on the part of the defendant and each and every one of its witnesses concealing evidence from the court and jury producing a substitute operator instead of the actual true operator.' She follows such assertion with her assignments of error and arguments thereon which will be treated in the same order in the following discussion.

The accident which caused plaintiff's injuries occurred according to the testimony of herself and her witnesses about three-thirty in the afternoon of December 19, 1948, on a 'W' car at the intersection of Normandie Avenue and Washington Boulevard in Los Angeles. In leaving the streetcar, plaintiff and her daughter, Mrs. Diamond, were preceded by her witness Richardson. The substance of their testimony is in that of Mr. Richardson who testified that after the latter had alighted, he turned to find plaintiff 'on the lower step * * * she had already fallen from the streetcar * * * the car was stopped * * * the steps were down * * * her feet were on the ground * * * Mrs. Diamond would have fallen if I hadn't grabbed her * * * at the same time the car started up the step raised up.' Mrs. Newman testified that the operator was 'approximately 23 years * * * wearing no uniform * * * wore some shabby plain clothes and no badge and no number * * * had no hat on * * * as soon as I attempted to get off by stepping just the first step * * * he got in motion with a violent jerk which was beyond my help or control and I hit landing on all steps and partly on the platform up on my neck and then that middle step so severely hit me in my lower back * * * He kept on raising it and he threw me off here. He acted like a drunk man and he was a very sickly, thin, emaciated looking fellow.'

It was established to the satisfaction of the jury that the car on which plaintiff rode to Normandie was No. 1536; the sole operator was Bailey; it carried on the westbound trip about thirty passengers when it reached Normandie, and not three as testified by Richardson; no accident occurred at that intersection. But since the sufficiency of the evidence to support the verdict is not in question, the assignments of error will be discussed in the order presented.

The first assignment is the court's overruling appellant's general objection to the following question propounded to her on cross-examination: 'Mrs. Newman, have you ever had a feeling of having a persecution complex?' To which she answered: 'I don't.' It is not improper to develop any feeling of antagonism or animosity of a witness toward a party. But if such ruling had been error, it could have caused no prejudice since the answer was favorable to appellant. Ingalls v. Monte Cristo Oil & Development Co., 176 Cal. 128, 131, 167 P. 857.

She complains of the court's adverse ruling on her general objection to the question: 'Have you ever accused anybody of spying on you continuously?' She answered that 'all kinds of attempts at frame-ups and wanting to run me down with a U-turn * * * another time engaging this woman who sits here and three more who tried * * * to get a fight and to take me to the City Counsel * * * There were four of them against me * * * And you say persecution--there was nothing else but.' The answer revealed the workings of her mind as intended by the inquisitor. With her own statement about frame-ups against her before the jury, they were more nearly able to weigh her testimony. By means of developing the situation of appellant with respect to her adversary, her interest, her motives, her inclination and prejudices, her powers of discernment and description, the cross-examiner placed the witness in her true light before the jury. Her answer showed that by reason of her suspicions she has erected a steel barrier of hate against her adversary. It is a rule of universal application that a witness may be required to answer any question which tends to test his accuracy, veracity or credibility and especially in the case of a party to the action where he appears as a witness. Neal v. Neal, 58 Cal. 287, 288. Great latitude should be allowed in developing the existence of bias. People v. De Mello, 28 Cal.App.2d 281, 286, 82 P.2d 457. Liberal cross-examination is the rule. Crutchfield v. Davidson Brick Company, 55 Cal.App.2d 34, 38, 130 P.2d 183; People v. Wissenfeld, 36 Cal.2d 758, 765, 227 P.2d 833. But appellant made no specific objection to the question asked her. An adverse ruling upon a general objection is never the basis for a reversal except in those instances where the testimony elicited is not admissible upon any ground whatsoever.

Appellant contends that the misconduct of respondent caused to be injected into the trial the question of 'how many prior attorneys appellant had had representing her in some phase of her case prior to the trial.' She says it was first mentioned in respondent's opening statement or on the voir dire examination of jurors. Inasmuch as neither the opening statement nor the voir dire examination is in the record, it must be presumed that no error occurred in either. Court and counsel are presumed to have done their duty in the absence of proof to the contrary. Code Civ.Proc. sec. 1963, subd. 15. A glimpse at the record discloses that it was appellant that infected the record with the charge that respondent had 'done everything to get away all of our lawyers and doctors' and 'as many as you could entice to your side to work for your interests.' She maintains that the evidence shows clearly that respondent bought off her lawyers. But if respondent had incipiently injected the question of her numerous counsel, not a single objection was interposed to the admissibility of the evidence. No motion was made for the jury to be instructed to disregard appellant's prior testimony relating to her erstwhile attorneys.

Appellant complains that an extraneous, immaterial issue was injected by respondent's asking her: 'Is Communism behind this? * * * Have you accused anybody of being a Communist in this affair?' Not only was no objection made to such question, nor motion made to forbid their repetition, but appellant appears to have relished the inquiry as another opportunity for denouncing the motorman and all who were opposing her lawsuit. She said a great many of 'them' are engaged in Communism and some of the lawyers too; 'it was a law of terror' that they practiced in her case. She had already testified that 'a man' entered the streetcar following her daughter at Vermont Avenue; that he spoke to the motorman and 'turned around and took a good look at us * * * at both of us * * * One woman went after me on Hoover and the regular motorman got off and this hoodlum got in who drove that car * * * There is a terriffic background in this case. Wild things was done about me * * * It was nothing short of murder.'

Appellant contends that it was error for the court over her objection to permit 'a demonstration of the mechanical operation of the steps on the streetcar No. 1536'; that it was three years after the alleged accident and with a different and a skilled operator. She ignores the proof adopted by the jury that Mr. Bailey was the only person who had operated car No. 1536 on the day she asserts Mr. Richardson helped her alight therefrom. After the court on respondent's motion had ordered a demonstration of the steps, appellant's attorney stated that he had 'never raised any issue so far as mechanical defects are concerned. We claim negligent operation.' Respondent's counsel replied that he purposed to show that the steps cannot be raised with more than 50 pounds whereas appellant's evidence had been that she sat on the second step--'spread out on the steps with my feet almost to the ground'; was five feet three inches tall and weighed in excess of 150 pounds. When asked by the court whether he objected to the demonstration, appellant's counsel stated: 'Yes, I object to it. As a matter of fact, there is other testimony to the effect that she was not on the steps but leaning on the steps.' The court again ordered the demonstration with the observation: 'If there is enough in the record to justify several beliefs on the point, perhaps it would be of assistance to go and see the step and see how it works.' Following the view of the steps' operation, it was stipulated that the demonstrator would testify that when he opened the streetcar doors the air gauge showed 60 pounds pressure.

Whether the court should grant the application for a view of a mechanical device whose operation was allegedly the cause of an accident is peculiarly within the discretion of the trial court. Nunneley v. Edgar Hotel, 36 Cal.2d 493, 501, 225 P.2d 497. No proof was made that the car used for the demonstration or that the manner of opening the doors was at all different from the condition of the device three years before. No other objection can on appeal be considered. Shields v. Oxnard Harbor District, 46 Cal.App.2d 477, 489, 116 P.2d 121; Le Mesnager v. Hamilton, 101 Cal. 532, 539, 540, 35 P. 1054.

Appellant contends that a new trial should have been granted by reason of the fact that she and her daughter had testified at the trial that Bailey was not the motorman and because they have since identified one Edward Rexford King as the operator of Car 1536 on ...