Ungefug v. D'Ambrosia

• Decision Date: 12 April 1967
• Citation: Ungefug v. D'Ambrosia, 58 Cal.Rptr. 223, 250 Cal.App.2d 61 (Cal. App. 1967)
• Court: California Court of Appeals
• Parties: Fred UNGEFUG and Elsle Delorous Leach, Plaintiffs and Appellants, v. Jerry Joseph D'AMBROSIA and Linda D'Ambrosia, husband and wife, and John Does I through V, Inclusive, Defendants and Respondents. Civ. 8009.

Page 223

58 Cal.Rptr. 223

250 Cal.App.2d 61

Fred UNGEFUG and Elsle Delorous Leach, Plaintiffs and Appellants, v. Jerry Joseph D'AMBROSIA and Linda D'Ambrosia, husband and wife, and John Does I through V, Inclusive, Defendants and Respondents.

Civ. 8009.

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

April 12, 1967.

[250 Cal.App.2d 63] Wendell V. Harris, Fontana, for plaintiffs and appellants.

King & Mussell, San Bernardino, for defendants and respondents.

OPINION

TAMURA, Associate Justice.

This is an appeal from a judgment for defendant in a wrongful death action brought by the surviving husband and daughter of Elizabeth Ungefug who was fatally injured when struck by an automobile.

The accident occurred at approximately 9:00 p.m. on March 28, 1963, at the intersection of Foothill Boulevard and Palmetto Avenue in Fontana. Foothill has two westbound and two eastbound lanes with a fifth lane at the intersection for left turns. The posted speed limit for westbound traffic was 45 miles per hour. Visibility was good and the pavement was dry.

Defendant D'Ambrosia gave the following account of the accident. He was driving westbound on Foothill in the lane nearest the curb, traveling at 35 miles per hour or less. As he approached the intersection a second westbound vehicle pulled alongside him in the inside lane and passed him by a half-car's length. The vehicles were in this relative position as they entered the easterly crosswalk of the intersection. When he first noticed decedent she appeared to be in mid-air between the two vehicles; simultaneously he felt an impact. He applied his brakes sharply, veered to the right and came to a stop along the curb. His vehicle left about 54 feet of skidmarks. As he alighted from his vehicle, he heard voices of unidentified persons who were running towards the scene saying either 'It is hit and run' or 'Is it hit and run?' He replied, 'No, I hit her'. The other vehicle failed to stop and was never identified.

The ambulance driver who removed decedent to the hospital testified that minutes prior to the accident he was in the parking lot of a restaurant located at the southwest corner of the intersection and saw decedent staggering across Foothill from north to south causing drivers to come to a screeching halt to avoid striking her. After she crossed the street, he observed decedent enter the parking lot, bump into a parked car and into his ambulance, fall and then enter a nearby supermarket. He then left the parking lot and returned to his office. Within minutes he received an emergency call to proceed to the intersection, a distance of approximately 3 miles. Upon arrival, as he was preparing to lift decedent on the gurney, he heard somebody say the victim had been hit twice, once by another car that failed to stop.

When she was struck, decedent was apparently crossing Foothill from south to north carrying a bag of groceries. A broken wine bottle was found near the cross-walk and a wet substance which smelled like wine was found on the exterior of defendant's vehicle.

Plaintiffs assign as error four instances in which the court admitted evidence over objections.

Plaintiffs contend that the ambulance driver's testimony describing decedent's earlier crossing of Foothill, including his testimony of vehicles coming to a screeching and disorderly halt as she crossed should have been excluded as being too remote and immaterial. The contention is without merit. Evidence of the actions and conduct of a party just before the accident occurs is admissible as indicative of his acts and conduct at the time of the accident provided too long a period has not elapsed. (Mathews v. Dudley, 212 Cal. 58, 61, 297 P. 544; Hughes v. Hartman, 206 Cal. 199, 204--205, 273 P. 560; Ritchey v. Watson, 204 Cal. 387, 390, 268 P. 345; Larson v. Solbakken, 221 Cal.App.2d 410, 421, 34 Cal.Rptr. 450; Jennings v. Arata, 83 Cal.App.2d 143, 146, 188 P.2d 298.) The question of remoteness is addressed to the sound discretion of the trial court. (Mathews v. Dudley, supra; Jennings v. Arata, supra; Traynor v. McGilvray, 54 Cal.App. 31, 33--34, 200 P. 1056.) In the instant case, in addition to describing decedent's crossing and her subsequent conduct, the ambulance driver testified that in his opinion she was intoxicated. His testimony would thus permit an inference that in re-crossing the street minutes later, decedent was in the same intoxicated condition, and, therefore, unable to exercise the degree of care required for her own safety.

Plaintiffs next assign as error the admission of the testimony of the investigating officer who, on cross examination, expressed an opinion concerning the speed of defendant's vehicle based upon the length of skidmarks. Plaintiffs had called the officer as their witness and had introduced his testimony concerning reaction time and braking distances by reference to a chart published by the California Highway Patrol. On cross- examination defense counsel, without objection, elicited testimony from the officer that at a speed of 35 miles per hour the skidmarks would be 67 feet long long and that defendant's vehicle left only 54 feet of skidmarks. He then asked the officer, 'That conclusively means, sir, does it not, that my driver in this case entered the intersection at some speed below 35 miles per hour, doesn't it?' Plaintiffs' objection on the ground that the answer called for a conclusion was overruled and the officer answered, 'Yes, sir'. Thereafter on redirect examination plaintiffs' counsel brought out the fact that the officer's testimony was based upon the chart and that he had not taken into account the fact that the last 9 feet of the skidmarks left by defendant's vehicle were against the curb. While the word 'conclusively' may have been objectionable, it was apparent that the officer was merely testifying in the abstract from the chart. An objection made on the ground of lack of a proper foundation may have been well taken. A qualified expert may express an opinion as to the speed of a vehicle from the length of skidmarks taking into account the condition of the pavement, make of the vehicle, its condition, and other relevant factors. (Linde v. Emmick, 16 Cal.App.2d 676, 685, 61 P.2d 338; Jobe v. Harold Livestock Com. Co., 113 Cal.App.2d 269, 272, 247 P.2d 951; See Hoffman v. Slocum, 219 Cal.App.2d 100, 104, 32 Cal.Rptr. 635.) The record in the instant case raises serious doubts whether the officer had been properly qualified as such an expert. An officer's opinion as to the speed of a vehicle from the length of skidmarks merely by reference to a chart has been held to be inadmissible. (Gray v. Turner, 245 Miss. 65, 145 So.2d 470, 472.) In the instant case, however, the officer was permitted to testify, without objection, by reference to the chart and the objection was not interposed on the ground of a lack of proper foundation. The court's ruling was thus, at most, a nonprejudicial error. (See Hoffman v. Slocum, supra, 219 Cal.App.2d p. 105, 32 Cal.Rptr. 635.)

Plaintiffs next assign as error the admission of the testimony of the ambulance driver that he heard someone say that another car had struck the decedent. The colloquy of court and counsel at this juncture of the trial was as follows:

'Q (By Mr. King) At the time that this statement was made, did you observe the people who were surrounding you with reference to their state of behavior, excitement and otherwise?

A Yes. There were people all around.

Q And will you tell us what the people's mental state appeared to be from the standpoint of calmness or excitement?

MR. HARRIS: Object to that as incompetent, irrelevant, and immaterial.

THE COURT: That is necessary under this case I just gave him.

MR. KING: I got to prove the guy was excited.

MR. HARRIS: Don't tell the jury.

THE COURT: Do you understand the question?

THE WITNESS: I am not sure.

MR. KING: Well, Judge, I can never prove the identity of the person who made the statement.

THE COURT: I understand that. I am not asking that. But he doesn't understand your question.

MR. KING: I don't blame him.

THE COURT: Did a condition of excitement prevail at that scene at that time?

THE WITNESS: Yes, sir.

THE COURT: All right. You can ask what he heard now.

Q (By Mr. King) Now, would you tell us what you heard said?

MR. HARRIS: If the Court please, we will make the same objection. It is hearsay.

THE COURT: I understand. The objection is overruled.

Q (By Mr. King) What did you hear said?

A As I set the flat down and we started to pick her up, I heard someone make the statement that she had been hit twice, by another car that did not stop--that didn't stop.

MR. HARRIS: Your Honor, we will move to strike * * *'

A spontaneous declaration of a participant or bystander relating to an event he has witnessed, made while still under the stress of excitement from observing it, is admissible as an exception to the hearsay rule. (Showalter v. Western Pacific R.R. Co., 16 Cal.2d 460, 468, 106 P.2d 895; Lane v. Pacific Greyhound Lines, 26 Cal.2d 575, 581--582, 160 P.2d 21; Foster v. Pestana, 77 Cal.App.2d 885, 889, 177 P.2d [250 Cal.App.2d 67] 54; Southers v. Savage, 191 Cal.App.2d 100, 106--107, 12 Cal.Rptr. 470.) Professor Wigmore's test for determining the admissibility of such declarations was approved and summarized in Showalter v. Western Pacific R.R. Co., supra, 16 Cal.2d at p. 468, 106 P.2d at p. 900 as follows: 'The basis for this circumstantial probability of trustworthiness is 'that in the stress of nervous excitement the reflective faculties may be stilled and the utterance may become the unreflecting and sincere expression of one's actual impressions and belief'. To render them admissible it is required that (1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e.,...