Zelayeta v. Pacific Greyhound Lines

• Decision Date: 14 June 1951
• Citation: 232 P.2d 572,104 Cal.App.2d 716
• Court: California Court of Appeals Court of Appeals
• Parties: ZELAYETA et al. v. PACIFIC GREYHOUND LINES, Inc., et al. Civ. 14477.

Page 572

232 P.2d 572

104 Cal.App.2d 716

ZELAYETA et al. v. PACIFIC GREYHOUND LINES, Inc., et al.

Civ. 14477.

District Court of Appeal, First District, Division 1, California.

June 14, 1951.

Rehearing Denied July 14, 1951.

Hearing Denied Aug. 9, 1951.

Bronson, Bronson & McKinnon, and Dana, Bledsoe & Smith, all of San Francisco, for appellants.

Fitz-Gerald Ames, Sr., Richard M. Siegel, San Francisco, for respondents.

PETERS, Presiding Justice.

On the rainy afternoon of November 24, 1945, Lawrence Zelayeta was driving his automobile along the Bayshore Highway south of San Francisco when it collided with a bus owned by defendant and appellant Pacific Greyhound Lines, Inc., and then being operated by Wallace Albritton, also a defendant and appellant. Lawrence Zelayeta was killed. Elena Zelayeta, his wife, and the couple's two children, brought this action for the wrongful death of Lawrence. After a hard-fought lengthy trial the jury brought in a verdict of $75,000, and from the judgment entered on this verdict Pacific Greyhound and Albritton appeal.

Appellants do not challenge the sufficiency of the evidence, nor do they challenge the amount of the judgment. They do contend, however, that this was a very close case on the issues of negligence and contributory negligence and for that reason they urge that any substantial error undoubtedly was prejudicial.

Three points are urged for a reversal:

1. That the trial court erred in admitting opinion evidence as to the point of impact; that is, as to which of the two vehicles first crossed the center line of the highway. Appellants feel that this issue as to the point of impact was the ultimate and basic issue in the case, and that the admission of opinion evidence on this vital issue was not only error but necessarily prejudicial error;

2. That the trial court erred in failing to give a requested instruction to the effect that the compromise by appellants of other claims arising out of this accident was not an admission of liability;

3. That the trial court erred in refusing to receive into evidence a claimed admission made by plaintiffs' counsel in an affidavit.

The Basic Facts.

Lawrence Zelayeta, was employed in South San Francisco. At about 4:20 p. m. on November 24, 1945, he left his place of employment and started towards San Francisco on Bayshore Highway with O'Brien, a fellow employee, as a passenger. His car was in good operating condition and was equipped with good tires and brakes. It was raining, and the windshield wipers were operating. O'Brien testified that, after leaving Brisbane, Lawrence was driving on the inside fast lane of the highway at a speed of about 30 to 40 miles per hour. Just north of Brisbane, a little over three miles from South San Francisco, is a long hill. While proceeding up this hill Zelayeta's car collided with a Greyhound bus travelling south down the hill. The accident happened between 4:20 and 4:35 p. m.

The bus involved in the accident left Seventh and Mission Streets in San Francisco at 4 p. m. Its schedule called for a running time of fifteen minutes to Brisbane and twenty minutes to South San Francisco. Admittedly, at the time of the accident, it was ten to fifteen minutes behind schedule. It was equipped with a governor set at 57 miles per hour in high gear, and 35 miles per hour in third gear. Estimates of its speed just prior to the accident vary from 25 to 60 miles per hour. Just prior to the collision it was travelling in the fast inside southbound lane of the highway, down hill, with its windshield wipers operating. Traffic was heavy. The bus was eight feet in width, which would give a one-foot clearance on either side of the bus within the lane in which it was travelling.

The inspection report for this bus indicates that it was examined before it started on its trip and found to be in good mechanical condition. There is some conflict in the evidence as to the condition of its tires. The tires were owned by Firestone Tire & Rubber Co., leased to Greyhound, and serviced at Greyhound terminals by Firestone employees. One of these employees testified that all of the tires on the bus had good treads, except the right, rear, inside tire, which was smooth. Another witness, who saw the two cars immediately after the accident, testified that both rear tires on one side were smooth. Officer Edwards, a traffic policeman, examined the tires on both cars. Those on Zelayeta's car were practically new. The dual tires on one side of the bus both 'were very smooth,' While the other two rear tires 'were getting pretty well down.'

The portion of the Bayshore Highway here involved is a four-lane highway, with double white lines separating the north and southbound lanes, and the north and southbound lanes being, in turn, divided, by single white lines, into two lanes each. There is an asphalt shoulder on each side of the highway, and a guardrail outside each shoulder. Beyond the east guardrail is an embankment. Just before the highway goes over the top of the hill towards San Francisco it curves to the right. There has been skidding on that curve in the past.

Albritton, the driver of the bus, testified that at the time of the collision he was in the inner, fast, southbound lane. His story was that Zelayeta skidded toward the bus, and that, in an attempt to avoid the collision, he, Albritton, turned the bus to the left. The evidence is in hopeless conflict as to whether the bus turned or skidded into Zelayeta's car, or whether Zelayeta turned or skidded into the bus, as to the point of impact, that is, whether in the north or southbound lane, and whether the driver of the bus did or did not slam on his brakes just prior to the accident thus causing the bus to skid into Zelayeta's car.

After the accident there was a considerable quantity of debris scattered in the northbound lanes. There were certain marks on the highway in the northbound lanes, none in the southbound lanes. These scrape marks began near the single white line in the northbound lane and extended over to the shoulder on that side of the highway. There were, apparently, no skid marks. After the impact, both cars crashed through the east guardrail. The bus rolled down the embankment and ended up on its right side. Zelayeta's car was upside down, facing east, with most of it through the guardrail, the remainder on the shoulder. It caught fire immediately after the accident.

Several witnesses testified that the damage to Zelayeta's car on the left side was more extensive than on the right, but there was substantial damage on both sides. The bus was damaged on both sides.

The evidence is obviously conflicting on the issues of negligence and contributory negligence. However, as we read the record, this conflict is not as great as appellants would have us believe. We think that the evidence is not only substantial to support the implied findings of the jury on these issues, but that it preponderates in favor of respondents.

Was opinion evidence admissible as to the point of impact?

One of appellants' major contentions is that is was serious and prejudicial error to permit Henry W. Edwards, Jr., a state traffic officer, who arrived at the scene, after the accident occurred, at about 4:55 p. m., to give his opinion, based upon what he then observed, as to the point of impact. This testimony came into the record under the following circumstances: Edwards testified that he had been a traffic officer for seven years, during which time he had investigated, officially, about one accident a day; that it was his duty to investigate accidents and to report to his superiors his conclusions and opinions as to what caused the accidents and how they happened. He described in detail what he saw at the scene of the accident. He observed the points of rest of the two cars and the nature of the damage to them, the extent, course, location, and nature of the debris, and the scrape marks, their course and nature. He was first asked a hypothetical question as to his opinion of the safety of operating a bus at 50 miles per hour under the circumstances described in the question. A defense objection was sustained, and, after argument in chambers, again sustained. Edwards was then asked his opinion as to whether a bus would skid under certain assumed conditions. An objection to this question was sustained. Then he was asked if, based solely upon what he had observed at the scene, he had formed an opinion 'as to the approximate point of impact in the highway between the two vehicles.' An objection was made that 'whether or not he has an opinion is irrelevant and immaterial.' The court stated: 'I think that perhaps he can state his opinion as to the point of impact from his observation, but not from having talked to other witnesses. If the question were reframed so as to contain only matters within his own observation, I think he could express an opinion.' After a colloquy between court and counsel, in which counsel for respondents and the court agreed that the opinion must be based on what the witness observed, at the scene of the accident, the question was reframed, and the question asked: 'Now, limiting yourself to what you saw yourself at the scene of the accident * * * have you an opinion as to approximately what point in the highway this impact occurred between the bus and the Zelayeta car?' The following then occurred:

'The Court: Let's make it specifically excepting any information that may have come to him from talking to others. Mr. Ames: That is right.

'The Court: In other words, we are confining ourselves to matters solely within your observation. Is that clear to your, sir? A. Yes.

'Q. Omitting from consideration here anything that may have been said to you by other people; is that clear? A. Yes.

'Mr. Smith: He is to state what the fact is as he determined it.

'The Court: The point of impact, yes. You have an opinion?

'Mr. Smith: Your Honor, I submit it is not...