Wells Truckways v. Cebrian

• Decision Date: 19 January 1954
• Citation: 122 Cal.App.2d 666,265 P.2d 557
• Parties: WELLS TRUCKWAYS, Limited, et al. v. CEBRIAN et al. Civ. 4480.
• Court: California Court of Appeals Court of Appeals

Page 557

265 P.2d 557

122 Cal.App.2d 666

WELLS TRUCKWAYS, Limited, et al. v. CEBRIAN et al.

Civ. 4480.

District Court of Appeal, Fourth District, California.

Jan. 19, 1954.

Hearing Denied March 17, 1954.

Tipton, Weingand & Tipton, Los Angeles, for appellants.

John Lewis King, San Bernardino, J. B. Lawrence, San Bernardino, of counsel, for respondents.

GRIFFIN, Justice.

As a result of a jury trial plaintiff Wells Truckways, Ltd. was given judgment for $18,864.32 against defendants for damage occurring to plaintiff's tractor and trailer when defendant Cebrian's tractor and trailer, driven by defendant Donahue collided with it on Highway 99 near Whitewater, about 9:30 p. m. on January 8, 1950, as a result of which Louis Richter, the driver of plaintiff's tractor and trailer, was killed. Defendants failed to recover on their cross-complaint.

Richter was proceeding easterly on Highway 99, about 1.2 miles east of the junction of that highway with State Highway No. 11. Donahue was proceeding in a westerly direction. The concrete pavement was 20 feet wide, with a white center line indicated. There was an additional 7-foot oiled gravel shoulder on each side of the highway. The road near the point of impact runs generally east and west. For approximately one mile to the east of that point proceeding westerly, there is a general descent in grade, and approximately 200 yards east of the point of the accident there is a 4.6 per cent descent grade with a slight curve to the north or to the right as one approaches that point from the east. There is evidence that the curved highway did not slope to the right or north side of it but rather sloped to the south or the left to permit drainage.

The vehicle driven by Donahue carrying perishable vegetables (including crated lettuce) destined for Los Angeles market, was described as a 1945 Kenworth Tractor with a box type 35-foot utility van. The power unit that pulled the trailer had two rear axles, and the box trailer which the tractor pulled rested on the back of the tractor on a plate or fifth wheel. This plate carried the weight of the trailer. The front end of the trailer, when detached, was prevented from hitting the ground by means of a landing gear on each side of the trailer box but under the trailer. These gears were of solid metal disc wheels about 10 inches in diameter, each carrying 2 wheels about 12 inches apart. When the trailer was resting on the fifth wheel of the trailer the clearance between the bottom of the landing gear wheel and the surface of the road was approximately 18 inches.

Plaintiffs' equipment was similar in size and general construction but had an open top covered with canvas, and was loaded with general freight. The night was disagreeable in that it was raining and there was a heavy wind blowing in the same direction defendants' truck was proceeding.

It is plaintiffs' contention that as the two tractors were about to pass each other each was on its respective proper lane on the highway but that Donahue was proceeding too fast in the wind and rain, down hill, and on an unbanked curve, and as a result of which the truck portion of his outfit swerved over or came over the center line into the pathway of plaintiff's truck and that the front left portion of plaintiff's tractor collided with it and then swerved over to its right or the south side of the highway, struck a large boulder, and crashed, resulting in the damage alleged.

It is further contended that as a result of the collision the trailer of defendants' truck became disconnected with the tractor; that the landing gears on it hit the highway and the two wheels on the left gear broke and the remaining structure left unbroken gouge marks in the paved highway from the point where they hit to the point where the trailer finally stopped; that these two gouge marks, about 12 inches apart, commenced in the northerly lane of the highway on the Donahue one-half thereof, and the left one commenced about 15 inches from the center white line and continued in a gradual swerving line northerly across the north one-half of the highway for about 330 feet to a point where the trailer finally turned over and stopped off the north portion of the paved highway and on the oiled shoulder. The south gouge mark paralleled the white center line for about 40 feet and varied from 15 to 18 inches. The evidence showed that the left and right landing gear wheels were inset a distance of 18 inches from the outer edge of the trailer box. The length of the trailer box was 35 feet and its width was 8 feet. The distance between the place of attachment of the landing gear and the back end of the trailer box is 23 feet. The set of rear wheels on defendants' trailer were completely knocked out from under it. Photographs of the general terrain, the highway, the debris thereon, the demolished trucks, the gouge marks on the highway, and lettuce from broken-open crates on both sides of the highway, were received in evidence after proper foundation was laid.

It is defendants' contention that Richter was coming around the curve; that each driver was traveling between 35 and 40 miles per hour and each was in his own lane of traffic about 12 to 18 inches from the white center line, but that Richter must have come over into Donahue's lane to some extent with his tractor and trailer after the tractor had passed Donahue's tractor, and struck the defendants' trailer near the center side loading door with the front portion of plaintiff's tractor, and that this was the proximate cause of the accident.

Donahue testified that after the impact he felt the trailer come forward over the tractor and it caved in the cab on it and then later dropped to the highway on the landing gear and the tractor continued on down the highway at about 10 miles per hour.

Since Richter was killed in the accident plaintiffs did not receive the benefit of his testimony. They rely upon the testimony of Donahue, the presumption that Richter exercised due care, and the circumstantial evidence related, as shown by the photographs, and particularly the testimony of a California Highway Patrol officer who, after qualifying as an expert witness, testified for plaintiffs in relation to what he saw at the scene of the accident and as to his opinion as to what actually happened in relation to the position of the trucks on the highway.

The main objection here presented goes to the question of the opinion of the witness testifying as an expert, in this respect, based upon the gouge marks indicated, the location of the trucks, the tracks of the tires, the position and damage to the tractors and trailors after the collision, and the surrounding circumstances above related. The witness drew many diagrams on the board illustrating what he saw there in reference to the gouge marks, the curve in the roadway, the position of the tractors and trailers after the accident, as well as the general position of the landing gear in relation to the trailer hook-up.

The following questions propounded to the witness by plaintiff's counsel were strenuously objected to by defendants' counsel on the ground that no foundation had been laid, that the opinions attempted to be elicited were nothing but conclusions of the witness based upon assumed facts and were ultimate facts which were to be determined by the jury. In overruling the objections the court admonished the jury generally that by reason of certain training or experience certain witnesses were offered by counsel in a trial as experts; that their testimony was admitted with the admonition to the jury that it could give it such credit as it felt it was entitled to, after hearing the reasons expressed by the alleged expert as to why he had that opinion; and that the jury might disregard it in favor of its own opinion, after hearing the evidence, if it did not feel his reasons were sufficient. The questions complained of are:

(1) 'Were you able to determine whether or not those gouge marks were made when the landing gear was going parallel to the white line, or was it angling?' The witness was permitted to answer: 'They were angling'. The witness Donahue testified that these gouge marks were made by the broken landing gear on the left side of his trailer. We see no objection to the testimony of this witness in this respect. It did not need an expert witness to determine this fact. The photographs in evidence fully disclosed it.

(2) 'Were you able to form an opinion of your own as to the approximate degree of angulation of the trailer at the time the marks were made?' Over objection the witness testified that in his opinion the trailer was at an approximate 20-degree angle at the time the marks were made.

(3) This question was followed by the question: 'If there was a 20-degree angle of the trailer at the time of the commencement of the marks, do you have an opinion as to whether or not that would have projected the rear end of the trailer across the white line onto the south side of the road?' Over objection, the witness answered: 'It is my opinion that it would have projected the trailer to the wrong side of the road.'

(4) The next question was: 'Based upon the testimony you have already given as to the length of the trailer and the distance between the landing gear and the rear end of the trailer, do you have an opinion as to how far the rear end of the trailer would have been projected across the white line onto the south side of the road?' Over objection it was answered: 'It is my opinion * * * that there was approximately 23 feet angulation to the left side of the roadway at the time of the impact.'

(5) This answer was explained by a diagram on the blackboard which the witness drew and to which the same objection was made.

(6) The question was then reiterated in different form and it was specifically sought to elicit how far the extreme edge of the trailer protruded over the center white line. The substance of...