Schauf v. Southern California Edison Co.

Decision Date13 July 1966
Citation243 Cal.App.2d 450,52 Cal.Rptr. 518
CourtCalifornia Court of Appeals Court of Appeals
PartiesJames SCHAUF, by the through his Guardian ad Litem, Simon N. Schauf, Plaintiff and Appellant, and Robert Gene Schauf, by and through his Guardian an Litem, Simon Schauf, Plaintiff and Respondent, v. SOUTHERN CALIFORNIA EDISON COMPANY, a corporation, Defendant, Respondent and Appellant. Carl B. McCLAIN and Barbara McClain, Plaintiffs and Respondents, v. SOUTHERN CALIFORNIA EDISON COMPANY, a Corporation, Defendant and Appellant. Civ. 7786, 7787.
OPINION

TAMURA, Justice.

These appeals are from judgments in a personal injury action (4th Civil No. 7786) and a wrongful death action (4th Civil No. 7787) arising out of a two-car automobile collision. The accident occurred about 8:15 p.m. on August 21, 1961, at the intersection of Central Avenue and Francis Street in the unincorporated territory of San Bernardino County, between a 1949 Chrysler operated by James Schauf, a minor, west-bound on Francis Street, and a 1957 Chevrolet north-bound on Central Avenue. Francis is a two-lane street and Central is a four-lane through street, all streets intersecting Central in the area, including Francis, being controlled by stop signs. The Chrysler failed to stop before entering the intersection.

Robert Schauf (the driver's brother) and Robert and Thomas McClain (brothers), all minors, were occupants of the Chrysler. They, and James Schauf, the driver, all suffered injuries of varying degrees. Robert McClain subsequently died as result of the injuries he suffered. The Schauf brothers, James and Robert, through their father, Simon Schauf, as Guardian ad Litem, filed a personal injury action against the driver of the Chevrolet, his employer and owner of the Chevrolet, the County of San Bernardino and Southern California Edison Company (hereinafter referred to as Edison). Mr. and Mrs. McClain filed a separate wrongful death action against the same defendants for the death of their son, Robert. The two cases were consolidated for trial.

The County and Edison were joined as defendants on the theory that they negligently maintained a hazardous condition at the intersection in that the visibility of the stop sign (installed by the county in 1940) controlling west-bound traffic on Francis was obstructed by an Edison power pole (installed by Edison in 1937 under a county franchise). The stop sign was located eight feet north of the north line of Francis and 36 feet east of the east line of Central. The power pole was located on the north side of Francis about 16 feet east of the stop sign. Act the time of the accident, the pole and the stop sign had not been moved from their original positions.

After the commencement of the trial, the County reached a settlement with plaintiffs in both actions and trial proceeded to conclusion against the remaining defendants. The jury returned the following verdicts: (1) in favor of the driver and owner of the Chevrolet against all plaintiffs; (2) in favor of Edison against James Schauf; (3) in favor of Robert Schauf against Edison; and (4) in favor of the of the McClains against Edison.

James Schauf appeals from the judgment in favor of Edison. Edison appeals from the judgment in favor of Robert Schauf and the McClains.

Pursuant to stipulation of the parties, the appeals have been consolidated for hearing and for disposition by a single opinion.

JAMES SCHAUF APPEAL

Plaintiff James Schauf seeks a reversal of the judgment in favor of defendant Edison on grounds that the court erred (1) in rejecting the testimony of his father, Simon Schauf, concerning observations he made at the scene of the accident about a week later, (2) in rejecting the testimony of his expert witness relating to the existence of a hazardous condition at the intersection, (3) in improperly instructing the jury by imposing on him the standard of care of an adult and (4) in improperly instructing the jury on the burden of establishing contributory negligence.

To show that the power pole obstructed the visibility of the stop sign as to westbound traffic on Francis, plaintiffs sought to introduce the testimony of Simon Schauf respecting observations he made when he later visited the scene of the accident at night in an automobile driven by a friend. When asked what his observations were when he got out of the automobile at the intersection and looked at the stop sign he replied: 'We stopped and looked it over and you can't hardly see the sign until you get practically right up to it.' This and similar answers were stricken. He was permitted to testify that 'You could only see a couple or three of the letters' and that the pole looked like '* * * the regular telephone pole', but was not permitted to state how the stop sign and pole appeared to him as he was riding west-bound on Francis toward the intersection.

There was no error in the court's ruling. Plaintiff urges that the witness was simply attempting to relate facts he observed concerning the relationship of the pole to the stop sign as he was traveling westerly on Francis which facts he was unable to convey to the jury except in an opinion or conclusionary form. The offered testimony, however, constituted evidence of an experiment conducted by Simon Schauf to prove that the visibility of the stop sign was obstructed by the pole and that the sign would not become visible in time to serve as a warning to westbound traffic on Francis. Since experiments conducted outside the courtroom frequently present serious questions concerning similarity of conditions, accuracy of observations, and tendency to confuse rather than clarify issues, the admissibility of the results of such experiments rests in the sound discretion of the trial court whose ruling will be sustained in the absence of clear abuse of discretion. (People v. Ely, 203 Cal. 628, 265 P. 818; Martin v. Angel City Baseball Association, 3 Cal.App.2d 586, 40 P.2d 287; Beresford v. Pacific Gas and Electric Co., 45 Cal.2d 738--748, 290 P.2d 498, 54 A.L.R.2d 910; Garcia v. Hoffman, 212 Cal.App.2d 530, 535, 28 Cal.Rptr. 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 occurred and those under which Simon Schauf made his observation such as the speed and position of the vehicle from which observations were made, the observer's position in the vehicle, the amount of illumination, and the acuteness of the observer's vision. Moreover, numerous photographs and diagrams depicting the relationship of the pole to the stop sign with explanatory testimony were received in evidence. There was thus no abuse of discretion in rejecting the offered testimony.

Plaintiff also maintains that certain testimony of his expert witness, Mr. Severy, a research engineer, was erroneously rejected. Objections were sustained to questions seeking to elicit his opinion, based on his examination of photographs of the intersection and its environs, whether the intersection presented a maintenance hazard to west-bound traffic on Francis approaching the intersection. His testimony concerning the existence of a traffic engineering principle which he referred to as 'expectancy' and described as a 'principle by which drivers are given proper cuing or advanced warning to situations which for their safety or guidance they are required to know' was stricken, and an objection was sustained to a hypothetical question as to whether, in his opinion, a normally alert driver west-bound on Francis at the time and place of the accident 'has basis for expectancy of a stop sign as he approached Central'.

Although the fact that an expert's opinion is on an ultimate issue of fact to be determined by the jury is not a ground for the exclusion (Martindale v. City of Mountain View, 208 Cal.App.2d 109, 124, 25 Cal.Rptr. 148; People v. Cole, 47 Cal.2d 99, 103, 301 P.2d 854, 56 A.L.R.2d 1435; Magee v. Wyeth Laboratories, Inc., 214 Cal.App.2d 340, 357, 29 Cal.Rptr. 322; Carey v. Lima, Salmon & Tully Mortuary, 168 Cal.App.2d 42, 45--46, 335 P.2d 181), its admissibility on the issue of the existence of an unsafe traffic condition under circumstances such as are presented in the instant case is a matter resting in the sound discretion of the trial court. (Martindale v. City of Mountain View, supra; Wilkerson v. City of El Monte, 17 Cal.App.2d 615, 62 P.2d 790; Baccus v. Kroger, 120 Cal.App.2d 802, 803--804, 262 P.2d 349; Neudeck v. Bransten, 233 Cal.App.2d 17, 19, 43 Cal.Rptr. 250.) In Martindale v. City of Mountain View, supra, the court held that while expert opinion may not be rejected merely because it coincides with an ultimate issue of fact to be determined by the jury, the trial court did not abuse its discretion in sustaining an objection to a hypothetical question propounded to a safety engineer as to whether or not conditions at a railroad crossing constituted a hazard to motorists. The consideration is 'whether the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness or whether, or the other hand, the matter is sufficiently beyond common experience that the opinion of an expert' would assist the jury....

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    • United States
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    ...of the experiment will not consume undue time, confuse the issues or mislead the jury ( Schauf v. Southern Cal. Edison Co. [ (1966) ] 243 Cal.App.2d 450, 455, 52 Cal.Rptr. 518)." ( Culpepper, at p. 521, 109 Cal.Rptr. 110, italics added; accord, People v. Boyd (1990) 222 Cal.App.3d 541, 565,......
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