Rosenberg v. Wittenborn

• Decision Date: 16 March 1960
• Docket Number: No. 24053,24053
• Citation: 178 Cal.App.2d 846,3 Cal.Rptr. 459
• Court: California Court of Appeals Court of Appeals
• Parties: Thelma ROSENBERG, a minor, by and through her Guardian ad litem, Hyman Rosenberg; Hyman Rosenberg, Plaintiffs and Respondents, v. Larry Byron WITTENBORN and Byron Wittenborn, Defendants and Appellants.

Page 459

3 Cal.Rptr. 459

178 Cal.App.2d 846

Thelma ROSENBERG, a minor, by and through her Guardian ad litem, Hyman Rosenberg; Hyman Rosenberg, Plaintiffs and Respondents, v. Larry Byron WITTENBORN and Byron Wittenborn, Defendants and Appellants.

No. 24053.

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

March 16, 1960.

Schell & Delamer, Joseph Bender, Henry F. Walker, Los Angeles, for appellants.

Paul Braslow, Hollywood, for respondents.

ASHBURN, Justice.

Personal injury action. Verdict for defendants. Plaintiffs' motion for new trial granted. Defendants appeal.

On October 1, 1956, plaintiff Thelma Rosenberg, a minor, was a passenger in a Lincoln automobile driven by Samuel B. Lincoln, and proceeding in a southerly direction on Westwood Boulevard. Within the intersection of Westwood and Pico Boulevards a collision occurred between the Lincoln and a westbound b Mercury automobile which was owned by defendant Byron Wittenborn and was being operated by defendant Larry Byron Wittenborn with the permission and consent of said owner. Plaintiff Thelma Rosenberg and her father, Hyman Rosenberg, sued for damages for injuries received by Thelma in said accident. Defendants denied negligence and alleged unavoidable accident.

At the trial defendant Larry Wittenborn testified that he was westbound on Pico Boulevard at about 1:00 a. m.; when he was four to five car lengths from the intersection the traffic signal changed from green to yellow for westbound traffic; he realized he should stop and 'I put on my brakes and there was nothing. I had braked the pedal but it had no stopping action on may car. So, I pumped my brakes several times, and after I was entering the intersection my brakes grabbed a little, but the first thing I knew this other car entered the intersection. I hit them broadside.' He also said that he was going 25 to 30 miles an hour when the signal changed from green to yellow; that he had reduced his speed to the extent of 15 to 20 miles an hour before the impact; that the other vehicle was going about 50 miles an hour and was first seen by him when he was a car length or half a car length into the intersection; the Lincoln was then between one and two car lengths from the intersection; he entered the intersection before the Lincoln; his car practically stopped at the point of collision and the other one traveled about three times as far, continued through the intersection and toward the southwest corner where it hit and glanced off a light pole. He also said that in June or July, 1956 (a few months before the accident) he had had his brakes relined; on the Friday before the accident he found he 'had no brakes whatsoever' and had the master cylinder replaced; he had no further trouble with the brakes which worked extremely well at all times until the occasion of the accident.

Lincoln, the driver of the other car, testified that he did not see defendants' car; that he was going through on the green light and defendants' car 'was already then coming through the crosswalk parallel to the way I was going'; The Lincoln was going about 25 miles an hour when entering the intersection; he had no idea as to defendant's speed other than 'it seems like he was coming--he was unable to stop and was coming pretty good'; defendants' car hit the Lincoln and stopped; the Lincoln spun over to the street light on the southwest corner, bounced off it and stopped. Police Officer Bragulla said it spun completely around.

Respondents' brief says: 'The only issue was that of the validity of the 'unexpected brake failure' defense.'

Plaintiffs' notice of intention to move for a new trial specified only three grounds: '(1) Insufficiency of evidence to justify the verdict and judgment. (2) Said judgment is against law. (3) Error in law occurring at the trial and excepted to by plaintiffs.' Of course, the motion could be made or granted upon on other ground. De Felice v. Tabor, 149 Cal.App.2d 273, 274, 308 P.2d 377. The order granting the motion made no mention of insufficiency of the evidence and hence it is conclusively presumed that it was not based upon that ground (Code Civ.Proc. § 657, last par.; De Felice v. Tabor, supra, 149 Cal.App.2d at page 274, 308 P.2d at page 378), and hence that specification has no place in the appeal. Respondents make no claim here that the 'judgment is against law.' The scope of review is thus reduced to alleged errors of law (De Felice v. Tabor, supra, 149 Cal.App.2d at page 274, 308 P.2d at page 378). The only one upon which respondents here rely is alleged error in admitting certain evidence upon the crossexamination of Police Officer Bragulla, plaintiffs' witness, who had investigated the accident at the scene shortly after its occurrence. It is argued that the evidence so received was objectionable hearsay.

Using his police report as a substitute for independent recollection, the officer testified on direct examnation:

'Q. Now, did you have occasion to take a statement or discuss the accident with the driver of the Mercury automobile and ask him what happened? A. I did.

'Q. Did you ask him how fast he was going prior to the impact? A. I did.

'Q. Did he answer you? A. He did.

'Q. What did he tell you of his speed? A. 30 miles per hour; about 30 miles per hour.' Also:

'Q. Did you ask Mr. Wittenborn, or did he tell you, whether at the time of the accident he had the red light or green light for his lane of traffic westbound on Pico Boulevard? A. He first stated the light was 'green for me,' and when he was pretty close to the intersection, 'the signal turned yellow.'

'Q. Did he tell you whether or not he entered the intersection against the red light? A. Well, he said he realized that he wouldn't make it so he stepped on his brakes to stop.

'Q. Did he say or did he tell you the condition of the light as he did enter the intersection? By light, I mean the light for him? A. Yes. He said, 'It was red for me." Upon cross-examination the officer was asked this partial question (which had been answered on direct):

'Q. Did you have a conversation with the defendant, Larry Byron Wittenborn, at the scene of the accident, in which--'; counsel for plaintiff interrupted and outside the presence of the jury urged an objection that any portions of the conversation other than those given on direct examination would be hearsay and self-serving, saying in part: 'I think this phase of the statement by the police officer, of what the defendant told him, which contains a statement made to him concerning alleged brake failure is objectionable, and I make an anticipatory objection to any evidence, any such evidence from the police officer as to what the defendant told him at the scene of the accident on the basis that it is hearsay * * * . The point I now raise is that it is an admission against interest and a self-serving declaration, and that it is hearsay, pure and simple. * * * I limited my direct examination, intentionally, to the defendant's statement to the officer regarding two points: specifically, number one,--speed; and number two,--the condition of the light as defendant entered the intersection. I tried to be as careful as I could. * * * The two points that I specifically brought out, the speed and the condition of the signal as he entered the intersection, are clearly, in my mind, an admission against interest which can be testified to regardless of where and when and under what circumstances they took place. The rest of the other portion of his statement, as referred to in the police report, is self serving.' After discussion, the objection was overruled. Examining counsel then asked this substitute question: 'Officer, would you tell us what Mr. Wittenborn told you at the scene of the accident?' The objection and ruling were made applicable thereto and the witness read from his police report as follows: "I was driving west on Pico Boulevard going about 30 miles an hour. As I approached Westwood Boulevard the light was green for me. When I was pretty close to the intersection the light turned yellow.'

'Mr. Bender: 'Signal.'

'The Witness: 'the signal turned yellow. I realized that I wouldn't make it so I stepped on the brakes to stop. At this time I realized that my brakes were not working. The brake pedal did not go to the floor board. It maybe went a third of the way down but the brakes did not hold. I pumped my brakes and at the last minute it did grab. I would estimate that I was about three car lengths east of the intersection when the light turned red for me and green for north and south traffic on Westwood. I did not see the other car,' which would be indicating the Lincoln, 'in time to swerve or do anything. My brakes were relined about three months ago and last Friday the master cylinder went out. I got it fixed Saturday and they have been okay since then.'' Motion to strike said evidence was thereupon made and denied.

Counsel for respondents says that the court in ruling on the motion for new trial reversed itself and held that the last quoted evidence should not have been admitted. It is well to note at this point that the customary discretion of the trial judge upon motion for new trial does not extend to granting the motion upon the ground of error which does not actually exist; that question is strictly one of law and the ruling is be to...